Serious Crime Bill [Lords]
The Committee consisted of the following Members:
Fergus Reid, Oliver Coddington, Committee Clerk s
† attended the Committee
Seema Malhotra (Feltham and Heston) (Lab/Co-op): I wish to make a few concluding remarks on clause 70. I would welcome the Minister’s responses to a range of issues that I raised, but I would like to comment on one in particular and explain why we will be pushing new clause 28 to a vote. The Minister talked about the Serious Crime Act 2007, which contained measures to bring prosecutions for encouraging someone to commit an offence. She suggested that, while we have provisions within legislation, we could possibly be contravening the European Convention.
In the European Convention, there are two competing rights. We have made a strong argument that encouragement to commit an offence is not an issue of free speech. It is not the expression of an opinion or political belief; it is an encouragement to commit an offence and should be treated with seriousness under our criminal law.
The Minister may be familiar with Professor Graham Virgo’s report and the Archbold review, which criticised the measures in the Serious Crime Act. They said that it made it harder to bring such a prosecution; that it had been easier before under the common law of incitement, where the defendant had communicated the encouragement to commit an offence, but the offence might or might not have taken place. The issue of whether or not the offence took place makes it harder to bring a prosecution under the Act. That is why it is increasingly important for us to consider whether the public encouragement of an offence, whether or not a person is identified as a victim, can still lead to a prosecution. The case going through Southwark at the moment is an offence under section 44 of the Serious Crime Act, but there is a particular identified individual.
The second complexity with the Serious Crime Act 2007 and its inchoate offences is that it requires a different charge to be brought—as far as I understand—for different offences. If one person encourages a room of 50 parents to commit FGM and 10 go off and do it, that person would have a strong defence that they did not believe that it would happen. Then there would be not just one prosecution—they would be charged with 10 offences. The complexities of the existing legislation, the need to intervene now in relation to the cultural context in which FGM is taking place, and the request from campaigners and communities for the tools to
Mr Steve Reed (Croydon North) (Lab): It is a pleasure to serve under your chairmanship, Ms Clark. I will focus on new clause 11 and the use or otherwise of mobile phones in prisons. I will preface that by saying that we support the proposals elsewhere in this clause to make it a criminal offence to possess an offensive weapon in prison and have that treated in the same way as it would be if the weapon was held by somebody intending to use it outside prison in a public place.
The previous Government banned the use of mobiles in prison, but we certainly support measures to disconnect phones that are smuggled in and used illegally. I question whether the Government are doing all that they can outside legislation.
Sir Paul Beresford (Mole Valley) (Con): I bring the Shadow Minister’s attention to a small private Member’s Bill that went through, which ensures that facilities are available—they can be used legally in prisons—to block phones digitally and take the numbers coming in and going out. Perhaps he is going down a path that is already covered.
Mr Reed: I suspect that his Front-Bench colleagues who tabled new clause 11 may be going down that route, but I believe there are issues with the cost of such approaches. I want to look at the cost of what is being proposed compared to alternatives. We do not necessarily have to go down the legislative route to prevent prisoners having mobile phones in prison. Will the Minister enlighten us about the findings of a piece of research that the Ministry of Justice commissioned last year at a cost, I understand, of around £70,000 into why and how prisoners are able to obtain and use mobile phones that are smuggled into prison?
From the Government’s figures, I understand that between 2013 and 2014, 7,400 mobile phones or SIMs were seized in prison. That is an awful lot, given that they are not supposed to be there. Not all prisons have the problem on the same scale. It appears, from the fact that some prisons seize no mobiles at all whereas others seize hundreds, that different approaches to preventing prisoners from getting their hands on mobile phones may be more effective than others. It may be worth looking at what best practice is, and see how we can
It is clearly much more cost-effective to prevent prisoners from getting their hands on mobile phones than to block them or go through the processes that are necessary to cut them off so that they cannot be used. Will the Minister tell us how long it would take, if and when the clause is enacted, to disconnect the mobile phone that is being used by a particular prisoner? Presumably, that process will involve identifying the mobile phone being used, making an order to the courts, securing a restriction order on the mobile phone operator, and requiring the mobile phone operator to take the action that is necessary to cut the service off. Court processes do not tend to be quick. During the ongoing process and throughout any appeals that the prisoner may be able to lodge, it is entirely feasible that the prisoner will get another SIM card and have access to the outside world via that; then the whole process would have to start again.
Although we welcome the provisions in the legislation, I hope that the Government will make more efforts to focus on preventing prisoners from getting their hands on mobile phones and SIM cards, and learning from the prisons that are doing the job better than others so that that information can be shared right across the system.
Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC): I have been contacted by the Prison Reform Trust, which has expressed concern about how the clause will operate in practice. I recognise that there is presently a lacuna in the law regarding knives and weapons in prison, and that clearly needs to be addressed. In 2012, 14,511 assaults were recorded in prison, but only 1,881 were recorded as involving a weapon of some sort. In the three preceding years, only 12% of the total number of recorded assaults involved the use of a weapon and, according to the National Offender Management Service’s safety and custody statistics of 2012:
As I have said, I do not disagree with the motivation behind clause 71, but I do share the Prison Reform Trust’s viewpoint that sanctions against assailants should form part of a wider strategy to reduce violence in prisons. It is surely of great concern that the past year has seen a 27% increase in serious assaults in prisons. Assaults by prisoners on officers have also risen by 12%. There are fewer officers available and an increase in the number of prisoners. That usually means that the figures will rise further still.
Can the Minister give an assurance that the Ministry will examine all aspects of how it might reduce violence in prisons? I am minded to table an amendment along these lines on Report, but I would welcome the Minister’s comments on the need for a holistic approach.
The Parliamentary Under-Secretary of State for the Home Department (Karen Bradley): This Government are determined to take the necessary steps to improve security in prisons. Clause 71 does that by creating a new offence of unauthorised possession in prison of a knife or any other offensive weapon. I will come on shortly to talk about the points raised by the right hon. Member for Dwyfor Meirionnydd, but let me focus now
In 2013, the use of an unauthorised mobile phone was instrumental in the escape of two prisoners. In 2009, a prisoner was sentenced to 18 years for organising cocaine smuggling from his prison cell using a mobile phone. In the same year, a gang leader was jailed for life for arranging the murder of a rival gang member using a mobile phone in prison. And just last week hon. Members may have seen the reports of a prisoner in Wandsworth prison who used a mobile phone to arrange the importation into this country of sub-machine-guns from Germany. I am sure that the whole Committee would agree that the use of unauthorised mobile phones by prisoners is unacceptable.
The National Offender Management Service uses a range of measures to prevent mobile phones from getting into prisons, as well as seizing mobile phones and SIM cards from prisoners. As the shadow Minister, the hon. Member for Croydon North, said, it recovered in 2013 some 7,400 SIM cards and handsets from prisons in England and Wales. NOMS uses a range of techniques to detect and seize phones already in prisons, including detection technology and regular cell and prisoner searches. However, despite the success of those approaches, as mobile phone technology advances and the size of handsets decreases, it is becoming easier for prisoners to conceal illicit phones and move them around the prison estate.
It is a criminal offence to possess or use an unauthorised mobile phone in prison, but it is not always possible to attribute that use to individuals, and prosecutions are rare. My hon. Friend the Member for Mole Valley drew the Committee’s attention to the private Member’s Bill to block mobile phones. The powers conferred on prison governors relate to the blocking or detection of mobile phone signals in prisons. The use of blocking equipment has been successful in some prisons, but it would cost up to £300 million to install blocking technology across the prison estate. Given the rate at which that equipment can become technologically obsolete, that investment would not render value for money across the whole estate.
In contrast, our new clause will enhance the weapons available to prison governors and others and enhance the ability of NOMS to tackle mobile phone use in prisons with a targeted, flexible and financially manageable approach. New clause 11 will enable the Secretary of State or, in Scotland, the Scottish Ministers, to make regulations conferring a power on the civil court to make an order—a telecommunications restriction order —requiring a mobile network operator to disconnect those SIM cards and handsets that are in prisons without authorisation. NOMS or an appropriate law enforcement agency will identify those phones that are being used and present the evidence before the civil courts. If satisfied that a phone is being used inside a prison without authorisation, the courts will make a telecommunications restriction order, directing that the
The shadow Minister asked about time frames for getting a phone or SIM card disconnected. This is still being worked through with Her Majesty’s Courts and Tribunals Service. We will set it out fully when we introduce regulations under the new clause, but I absolutely agree that we need to make the process as quick as possible.
Subsection (4) sets out additional matters that may be covered in the regulations, including the enforcement of orders. This element of the regulation-making powers is discretionary, as it may not prove necessary to make provision in respect of all the matters listed in subsection (4). For example, in relation to the enforcement order, if as we are minded, the normal rules governing contempt of court apply, then there would be no need to make bespoke provision in relation to enforcement.
The regulation-making power is subject to the affirmative procedure, so the regulations will need to be debated and approved by both Houses before they can come into force. The mobile network operators support this legislation. They have told us that they welcome a clear legal framework which requires them to act. The new power provides that clarity.
There are, of course, legitimate circumstances in which prison staff and others may need to have a mobile phone in their possession while working in or visiting a prison. This is recognised in the scope of the new clause. It is clear from subsection (1) that the power relates only to telecommunications devices used by persons “detained in custodial institutions”. Prisoners themselves have access to approved fixed-line telephones so that they can keep in contact with their families, friends and legal advisers. There is no justification for prisoners to use illicit mobile phones, and this amendment will be an effective tool in the fight against the use of unauthorised phones for criminal purposes.
The right hon. Member for Dwyfor Meirionnydd asked about the problem of knives and other weapons in prisons. NOMS is committed to reducing violence in prison. Prisons already have in place security measures to detect and deter weapons, including metal detectors and wands, frequent searching programmes of both prisoners and locations within the prison, as well as intelligence systems to target searches. There is a comprehensive programme of work under way to reduce violence and the effect of violence, including, for example, the protection of staff by stab-resistant vests and deterring attacks by introducing body cameras to record prisoner interaction. Work is also being undertaken with the Crown Prosecution Service and the national policing lead in developing a new joint protocol for reporting crimes committed in prison.
Apart from the occasional weapons stolen from workshops or smuggled into prison, prisoners most commonly manufacture weapons from everyday items.
The new provision in relation to the possession of knives in prison will provide the Prison Service with a further option when dealing with this problem. It does not follow that offenders will be prosecuted in every case. It will continue to be possible to deal with possession of a knife through internal disciplinary arrangements, and I agree with the right hon. Gentleman that we need a flexible approach. Clause 71 provides for this.
The Solicitor-General (Mr Robert Buckland): It is a pleasure to serve again under your chairmanship, Ms Clark. I am sure that in discussing this clause all members of the Committee will be conscious of the very real threat that we continue to face from terrorism, particularly in relation to Syria and Iraq and to individuals both here and abroad who seek to disrupt the peace and security of this country. The tragic events in France last week are a salutary reminder of these dangers.
Terrorism is, of course, not new, but the struggle to keep the public safe from harm today is more difficult than ever due to the continuous and rapid diversification of terrorism. It is an evolving threat. Many of the threats that we face today have significant overseas connections. The places where UK-linked individuals, and those seeking to harm UK interests, may now be training or otherwise preparing for terrorism are increasingly likely to be located abroad, hence the reason for this clause.
Syria, in particular, remains the world’s No. 1 destination for violent extremists, posing not only a regional threat but a wider threat. The issue of individuals from the UK seeking to engage in combat and conflicts abroad is sadly not new, nor is it specific to Syria. Members will be aware that, currently, the biggest challenge to our peace and security comes from ISIL, which is using a combination of terrorism and brutality to hold large swathes of Syria and Iraq and now occupies a third of those countries combined—that is an area almost the size of Great Britain. Those events further demonstrate foreign fighters’ fluidity of movement, but they represent only a portion of the terrorist organisations and individuals who seek to harm the west and the UK, so it is absolutely right that the Government take steps to respond to that challenge.
The House has recently agreed measures in the Counter-Terrorism and Security Bill that will provide new legal powers and increase the capability of our law enforcement and intelligence agencies so that they can disrupt individuals involved in terrorist activities and, importantly, prevent others from being radicalised in the first instance. The measure before the Committee is intended to achieve a similar end. Clause 72 amends section 17 of the Terrorism Act 2006 to extend the territorial jurisdiction of UK courts over the specific offences of preparation and training for terrorism, which are contained in sections 5 and 6 of the 2006 Act. The effect of the measure will be that, where UK-linked individuals and those who seek to harm the UK do anything outside this country that would constitute an offence under sections 5 or 6, they can be prosecuted on their return to the UK, thereby ensuring that they no longer remain beyond the reach of the law. As a safeguard, any prosecution under this measure will require the express consent of either the Attorney-General or me. In addition, for a prosecution to be brought, the Crown Prosecution Service must be satisfied that there is sufficient evidence and that prosecution is in the public interest.
Sir Andrew Stunell (Hazel Grove) (LD): I thank the Solicitor-General for giving way. He has referred to the offence being prosecuted when the perpetrator returns to this country. I assume that the offence must have been committed after the Bill comes into force and that existing cases will not be caught by this new legislation.
Our priority is to dissuade people from travelling to take part in conflicts abroad. Our legislation should leave no doubt in the mind of individuals engaging in preparation or training abroad for terrorism, of the action that we are prepared to take to protect the public. That is why we intend to act as early as possible, through amendments 10, 11 and 13, to ensure that clause 72 is commenced immediately on the passing of the Bill. That crucial change will enhance the ability of our law enforcement partners, who work tirelessly to keep us all safe, to take the appropriate action against people who return to the United Kingdom having undertaken such criminal acts.
I have already addressed the issue of retrospectivity, but I make it clear that we believe that there is an overriding need to ensure that our legislation is as robust as possible to ensure that our operational capability to protect the public is not in any way impeded. I therefore commend the clause and the Government amendments to the Committee.
Jack Dromey (Birmingham, Erdington) (Lab): It is a pleasure to serve under your chairmanship once again, Ms Clark. The Solicitor-General is absolutely right that the world faces a horrific threat in Syria and Iraq, in France and Belgium and in our own country. Over the past year or two we have seen haunting images of beheadings, of gay people being thrown from towers and of women and young girls being bought and sold. On our own continent, we now see journalists massacred, police officers executed and Jewish people shot simply because they are Jews. This offends humanity and demands
The phenomenon of foreign fighters is not a new one, yet the number of volunteers leaving parts of Europe to join the Syrian conflict is quite unprecedented. The Government’s own estimation is that at least 500 people have left the UK to join the conflict. Indeed, while some other smaller countries such as Belgium and Denmark have contributed higher numbers relative to their size, Britain is among the countries in Europe that are contributing the largest overall numbers of foreign fighters to the conflict in Syria.
The chilling sound of a familiar accent in those who have filmed their atrocities and made them widely available online brings home just how extreme some UK citizens have become. It is estimated that, of the 500 people who have embarked in fighting abroad, up to half may have returned. It is true to say that some of the returnees have come back bitterly regretting their involvement. However, there are equally those who return tasked with carrying out acts of terror. They come back to recruit fighters or to spread propaganda. Some have military experience and want to live out their violent jihadism in Britain and Europe. According to the evidence given to the Home Affairs Committee last year by Dr Thomas Hegghammer, director of terrorism research at the Norwegian Defence Research Establishment, as many as one in nine foreign fighters will return to their country of origin specifically to carry out terrorist attacks. The new legislation introduced by the Government is therefore entirely appropriate, as it makes it as difficult as possible for those individuals and provides extraterritorial jurisdiction. We therefore wholeheartedly support speedy implementation.
How many people do the Government feel are likely to be prosecuted under the proposed legislation? How do the Government intend to go about the difficult task of collecting viable evidence from extraterritorial acts? It is noted in the impact assessment that it is often difficult
in terrorism. The Solicitor-General was absolutely right to say that, in addition, we must dissuade people from leaving our shores in the first place to travel to Syria. Sadly, the fact that so many have gone can signify a failure at home to tackle terrorism and radicalisation at its root. I accept that it is not the case with every instance of people travelling to Syria, but there have been failures to prevent young people from being radicalised or drawn into extremism in the first place.
The Home Secretary has said in recent debates that she wants to strengthen prevention programmes generally and the Prevent programme in particular, including putting it on a statutory footing. We welcome that. However, getting the Prevent programme right is not simply about legislation. The programme has been narrowed over recent years. That has led to criticism, including from the Intelligence and Security Committee, which noted in a recent report
Mistakes have been made, but I have to say that there have been some welcome announcements of late by the Government and a determination to put that right. It is crucial that we develop a much more effective counter-narrative. The current programmes do not sufficiently address two significant challenges: peer group recruitment, which is clearly taking place in many areas, and social media, through which recruitment and radicalisation are taking place. Much more needs to be done to address those challenges and to dissuade in the first place, as the Minister said. Community-led programmes might be considerably more effective than police or Government-led programmes.
On social media, there was a fascinating report over the weekend on the excellent work being done by King’s college London. It argued that, with additional resources being made available to the acknowledged experts in our country, the effective monitoring of social media can have a devastating effect in finding out who is responsible for some of these appalling atrocities.
Fourthly and finally, I stress again that while I wholeheartedly support the proposed change to the law, in a wider context, the unprecedented cuts to our police service is inevitably having an ever more serious impact on the police’s ability to do their job. Only yesterday Peter Clarke, former head of counter-terrorism, said in T he Times:
“Neighbourhood police hold one end of the ‘golden thread’ that can take us from Britain’s streets to wherever in the world terrorists are trained, equipped and radicalised … A reduction in police officer numbers increases the risk to the public”.
I have seen at first hand in the west midlands just how important neighbourhood policing and the patient building of community relationships are. The excellent Chris Sims, chief constable of West Midlands police, revealed figures last November showing that in the previous five years, of 40 cases brought before the courts for serious terrorist crimes, there were 31 convictions. All bar one person convicted was Muslim, and that one was an eastern European who murdered a Muslim. However, Chris Sims said that that patient building of community relationships had been key, with the community co-operating with the police in identifying those wrongdoers within their ranks. The unprecedented cuts to policing will inevitably have an effect at the next stages.
In summary, in supporting the clause, I ask the Minister to carry out that assessment of the effectiveness of its implementation, I ask the Government to reflect further on the importance of strengthening prevention and, crucially, I ask them to think again about the scale of the cuts to our police service.
The Solicitor-General: I am grateful to the hon. Gentleman for his response. I shall answer his questions in turn. First, on prospective prosecutions, he rightly refers to the impact assessment. It is difficult to predict precisely the number that will be prosecuted under the new measures but we have assessed that there will be between one and five prosecutions under section 5, covering the offence of preparation, and one prosecution every other year under section 6, covering training.
Section 5, in particular, has been one of our most operationally useful offences. Home Office statistics show that since September 2001 there have been 56 convictions for preparation for terrorism under the Terrorism Act 2006 and its predecessor. Of those, 13 prosecutions were conducted since June 2012. Under section 6 and section 8, covering attendance at a terrorist training camp, there have been seven successful convictions since September 2001, two since last June.
On operational effectiveness, the key question that the hon. Gentleman asked was, rightly, about obtaining the evidence. Clearly, evidence gathering involving other jurisdictions is going to be more challenging, but our law enforcement partners are already well accustomed to working with the relevant authorities in other countries to gather evidence, either by mutual legal assistance agreements or otherwise. They are clear that evidence obtained from abroad is frequently used in UK prosecutions, including other types of terrorism offence, for which there is already extraterritorial jurisdiction. This is not, as the hon. Gentleman will well appreciate, a wholly new departure.
The hon. Gentleman made a very good point about social media. That was mentioned by David Anderson QC, the independent reviewer, in his evidence to the Joint Committee on Human Rights, of which I was a member until recently. The evidence stated that, like other young people, violent extremists and jihadis use social media. That helps in terms of evidence gathering. It is also reassuring to know that, like other terrorism offences, these new offences will be subject to the annual review that David Anderson QC carries out.
I turn now to dissuasion and Prevent. We believe that the work of Prevent is now more properly targeted. While I hear what the hon. Gentleman says about casting the net more widely, we know from bitter experience that sometimes the net has been cast to include groups that were themselves either apologists for, or too deeply involved in, the culture of extremism which, sadly, has led to the commission of terrorism offences. There was a real concern about how we could more effectively target resources and projects in order effectively to address the risks that we all understand and are concerned about. Of course, he is right to allude to the statutory duty in the Counter-Terrorism and Security Bill. That will enhance and reinforce the Home Office’s assumption of responsibility for a new counter-extremism strategy that involves not just the Home Office—although its role will be to oversee the strategy—but the whole of Government, the rest of the public sector and, indeed, wider civil society so that we can, first, confront; secondly, challenge; and thirdly, defeat extremism. I hear what the hon. Gentleman says about continuing concerns, which we all share, but I believe that the Government’s policy is clear, compelling and represents a real sense of purpose and duty when it comes to challenging the threats which, sadly, exist in our society.
I commend the clause to the Committee and welcome the support of Her Majesty’s Opposition. I very much hope that the measure will give more encouragement, resource and power to the investigating authorities to make sure that criminals who get involved in this form of extremism are prosecuted. The number of prosecutions in connection with Syria is a clear sign that the best way
In section 338 of the Proceeds of Crime Act 2002 (money laundering: authorised disclosures), after subsection (4) insert—
“(4A) Where an authorised disclosure is made in good faith, no civil liability arises in respect of the disclosure on the part of the person by or on whose behalf it is made.””—(Karen Bradley.)
This New Clause makes express statutory provision to protect persons (for example, financial institutions and lawyers) who report in good faith their suspicion that another person is engaged in money laundering activity (in accordance with Part 7 of the Proceeds of Crime Act 2002) from incurring civil liability for doing so .
After section 15 of the Sexual Offences Act 2003 insert—
“15A Sexual communication with a child
(1) A person aged 18 or over (A) commits an offence if—
(a) for the purpose of obtaining sexual gratification, A intentionally communicates with another person (B),
(b) the communication is sexual or is intended to encourage B to make (whether to A or to another) a communication that is sexual, and
(c) B is under 16 and A does not reasonably believe that B is 16 or over.
(2) For the purposes of this section, a communication is sexual if—
(a) any part of it relates to sexual activity, or
(b) a reasonable person would, in all the circumstances but regardless of any person’s purpose, consider any part of the communication to be sexual;
and in paragraph (a) “sexual activity” means an activity that a reasonable person would, in all the circumstances but regardless of any person’s purpose, consider to be sexual.
(3) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years.”” —(Mr Buckland.)
This New Clause provides for a new offence where an adult communicates with a child under 16 for the purpose of obtaining sexual gratification and the communication is sexual or intended to encourage a sexual response. The offence would be triable either way with a maximum penalty (on conviction on indictment) of two years’ imprisonment.
‘(1) A person (A) commits an offence if—
(a) A repeatedly or continuously engages in behaviour towards another person (B) that is controlling or coercive,
(b) at the time of the behaviour, A and B are personally connected,
(c) the behaviour has a serious effect on B, and
(d) A knows or ought to know that the behaviour will have a serious effect on B.
(2) A and B are “personally connected” if—
(a) A is in an intimate personal relationship with B, or
(b) A and B live together and—
(i) they are members of the same family, or
(ii) they have previously been in an intimate personal relationship with each other.
(3) But A does not commit an offence under this section if at the time of the behaviour in question—
(a) A has responsibility for B, for the purposes of Part 1 of the Children and Young Persons Act 1933 (see section 17 of that Act), and
(b) B is under 16.
(4) A’s behaviour has a “serious effect” on B if—
(a) it causes B to fear, on at least two occasions, that violence will be used against B, or
(b) it causes B serious alarm or distress which has a substantial adverse effect on B’s usual day-to-day activities.
(5) For the purposes of subsection (1)(d) A “ought to know” that which a reasonable person in possession of the same information would know.
(6) For the purposes of subsection (2)(b)(i) A and B are members of the same family if—
(a) they are, or have been, married to each other;
(b) they are, or have been, civil partners of each other;
(c) they are relatives;
(d) they have agreed to marry one another (whether or not the agreement has been terminated);
(e) they have entered into a civil partnership agreement (whether or not the agreement has been terminated);
(f) they are both parents of the same child;
(g) they have, or have had, parental responsibility for the same child.
(7) In subsection (6)—
“civil partnership agreement” has the meaning given by section 73 of the Civil Partnership Act 2004;
“child” means a person under the age of 18 years;
“parental responsibility” has the same meaning as in the Children Act 1989;
“relative” has the meaning given by section 63(1) of the Family Law Act 1996.
(8) In proceedings for an offence under this section it is a defence for A to show that—
(a) in engaging in the behaviour in question, A believed that he or she was acting in B’s best interests, and
(b) the behaviour was in all the circumstances reasonable.
(9) A is to be taken to have shown the facts mentioned in subsection (8) if—
(a) sufficient evidence of the facts is adduced to raise an issue with respect to them, and
(b) the contrary is not proved beyond reasonable doubt.
(10) The defence in subsection (8) is not available to A in relation to behaviour that causes B to fear that violence will be used against B.
(11) A person guilty of an offence under this section is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both;
(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or a fine, or both.”—(Mr Buckland.)
This New Clause provides for a new offence criminalising controlling or coercive behaviour in an intimate or family relationship. The new offence would be triable either way with a maximum penalty (on conviction on indictment) of five years’ imprisonment.
‘(1) Any person who commits an act of or engages in a course of conduct that amounts to coercive control in a domestic setting shall be guilty of an offence.
(2) A person guilty of an offence under this section is liable—
(a) on summary conviction to a community order or imprisonment for a term not exceeding 12 months or a fine not exceeding level 5 on the standard scale; or
(b) on conviction on indictment to a community order or term of imprisonment not exceeding 14 years or a fine not exceeding the statutory maximum.
(3) The Secretary of State shall by regulations—
(a) set out matters that the court must take into account when determining whether to refer the matter to the Crown Court;
(b) require a court, local authority or other public body not to disclose the current address or postcode of the victim of an alleged offence under subsection (1) if, in the court’s view, it would place the victim at risk of harm by the alleged perpetrator or any other person;
(c) provide the court with the power to require those convicted of an offence under subsection (1) to successfully complete a domestic violence programme and/or another appropriate counselling programme as ordered by the court; and
(d) provide the court with the power to issue domestic violence orders under section 28 of the Crime and Security Act 2010 to those convicted of an offence under subsection (1).
(4) Regulations under this section shall be made by statutory instrument and may not be made unless a copy has been laid in draft before, and approved by, both Houses of Parliament.”
‘(1) The prosecution of any person under the terms of New Clause [Offences of coercive control and domestic violence] shall not be the subject of statutory time limits.”
‘(1) For the purposes of this Act, “Domestic Violence” means—
(a) controlling, coercive or threatening behaviour;
(b) physical violence; or
(c) abuse, including but not limited to, psychological, physical, sexual, financial or emotional abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality.
(2) For the purposes of the definition in subsection (1)—
“coercive controlling behaviour” shall mean a course of conduct, knowingly undertaken, making a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.
“coercive or threatening behaviour” means a course of conduct that knowingly causes the victim or their child or children to—
(a) fear that physical violence will be used against them;
(b) experience serious alarm or distress which has a substantial adverse effect on the victim’s day-to-day activities.
(3) For the purposes of subsection (2) a person shall be deemed to have undertaken a course of conduct knowingly if a reasonable person in possession of the same information would conclude that the individual ought to have known that their course of conduct would have the effect in subsection 2(a) or (b).”
‘(1) The Secretary of State shall require every police service in England, Wales and Northern Ireland to develop, adopt, publish and implement written policies and standards for officers’ responses to coercive control and domestic violence incidents within one year of this Act coming into force.
(2) The purpose of the policies required under subsection (1) shall be to ensure that police forces prioritise cases of domestic violence involving coercive control as serious criminal offences.
(3) The purpose of the standards required under subsection (2) shall be to ensure—
(a) a minimum level of information and support for victims of alleged domestic violence; and
(b) all police officers involved in domestic violence cases shall have had appropriate training in domestic violence behaviours.
(4) In developing these policies and standards each police service shall consult with local domestic violence experts and agencies.”
‘(1) The Secretary of State must, within six months of commencement of this Act, commission a report on the potential effectiveness of a national register of individuals convicted of more than one domestic abuse or stalking offence.
(2) The report should include a cost-benefit analysis of such a register.”
The Solicitor-General: Thank you, Ms Clark, for listing everything comprehensively to allow us to have a debate that will encompass Second Reading and stand part as well as contributions on amendments tabled by other hon. Members.
It is my particular pleasure—I think that is the right word, or perhaps “honour”— to move the amendment that stands in the name of my right hon. Friend the Home Secretary. Domestic abuse is unquestionably a serious and intolerable crime. I have had to deal with it as a practitioner and I have seen the consequences of
In 2012-13, more than 1.9 million people in this country dealt with the terrifying reality of being victims of violence and abuse at the hands of those closest to them, and 76 women were murdered by a current or former partner, yet we know that that appalling crime is still under-reported. In fact, some victims do not think that what is happening to them is wrong. More shockingly still, some of those controlled and dominated by someone they trust may even blame themselves for what is happening. As a result, such abuse is hidden behind the closed doors of far too many families. We must bring domestic abuse out into the open if we are to end it. The first step is to call it what it is: a crime of the worst kind.
Andy McDonald (Middlesbrough) (Lab): Does the Minister think that the situation is assisted or hindered by the barriers placed in the way of women in employment who wish to secure legal aid funding to take action? They also face funding barriers in getting places in women’s refuges.
The Solicitor-General: The hon. Gentleman raises important points about the extent of legal aid. We cannot rehearse the arguments about the Legal Aid, Sentencing and Punishment of Offenders Act 2012, but he will know that, where there is evidence of domestic violence and the criteria are met in respect of the legal aid fund, there will be funding for civil and family proceedings relating to domestic violence in family situations. On refuges, I must say that I am proud that the Government have seen more refuges and rape crisis centres opened, because they are a vital resource for many women who have nowhere else to turn. The Government’s record is good when it comes to enhancing and spreading awareness of the role of those important services.
I say to the hon. Gentleman that we are dealing primarily with the criminal sphere. He will know that legal aid and public funding are available not only for the prosecution of offences but for criminal defence and the conduct of criminal cases in the magistrates or Crown courts. That is what we are discussing today.
I will deal with criminal prosecution, because the Government have made significant strides to improve the criminal justice response to domestic violence and abuse. The number of referrals from the police for prosecution is higher than ever before, and the number of cases reaching court has risen. In 2012-13, there were just over 70,700 prosecutions for domestic abuse nationally, and current projections expect that figure to increase to nearly 90,000 by the end of this financial year. The conviction rate for domestic violence and abuse is also at its highest-ever level, yet a stark comparison of crime survey and Crown Prosecution Service figures suggests that just one in 20 of those abused by family members or partners are able to access justice.
That is just not good enough. It suggests that too many cruel and manipulative perpetrators are getting away with their actions, so last summer the Government ran a consultation asking whether the law needs to be strengthened to provide better protection to victims of domestic abuse. Some 85% of respondents told us that
New clause 9 would close a gap in the law that should not exist. It would ensure that those abused by the people closest to them are protected by the law. The new offence seeks to address repeated or continuous behaviour in relationships where incidents viewed in isolation might appear unexceptional but have a significant cumulative impact on the victim’s everyday life, causing them fear, alarm or distress.
It is not our ambition to intrude into ordinary relationships. Every relationship will have its own power dynamics, and this proposal is not about outlawing arguments or saying that couples cannot disagree. We recognise the importance of ensuring that the new offence does not impact on non-abusive relationships that might be more volatile than others. As such, the repeated or continuous nature of the behaviour and the ability of a reasonable person, whether part of or external to the relationship, to appreciate that their behaviour will have a serious effect on the victim, are key elements of the new offence.
As an additional safeguard against the inappropriate use of the power, a defence is set out within the new offence. That will operate where someone was genuinely acting in the best interests of another, for example, where a spouse is a carer and needs to restrict the movement of a partner, perhaps with mental health issues, for their own safety.
However, we also recognise the importance of ensuring that that defence cannot be used as a “get out of jail free” card by manipulative perpetrators. The defence will not be available where the victim has been caused to fear violence. Where the defence is available, a defendant will need to show that a reasonable person would agree that their behaviour was reasonable in all the circumstances. That is not an easy test to meet, I submit, if someone has been responsible for perpetrating a campaign of control against another person.
We have ensured that the new offence does not overlap the existing criminal law. For that reason, we have decided that child abuse should not fall within the remit of the new offence, because it is covered by the existing law on child cruelty, which we have already debated in the context of clause 65. Similarly, the new offence does not apply to extended family members who have never lived with the victim, because stalking legislation is applicable in those circumstances.
Norman Baker (Lewes) (LD): Will my hon. and learned Friend clear up in my mind what a child is in the context of the new clause? Subsection (3)(b) refers to an exemption if the person is under 16, yet subsection (7) refers to a child being a person under the age of 18. Will he please explain the difference?
The Solicitor-General: I will do my best. Subsection (3)(b) relates to the exclusion that I have just mentioned in relation to the commission of an offence against B. The later definition of “child” deals with how we define the members of the same family. Those are two different purposes. The first purpose relates to the nature of the victim and the second to the test of whether parties are members of the same family. That perhaps eloquently illustrates the inconsistencies that we debated last week. Because of the different capacities, it is difficult for the law to have a rational coherence in every circumstance. Again, I do not apologise for that. The legislation is carefully drafted to make that point powerfully.
Sarah Champion (Rotherham) (Lab): This measure is very much needed and I welcome the Minister’s bringing it forward. In a number of the child sexual exploitation cases I have come across, although the grooming process started before the child was 16, the actual sexual exploitation and trafficking of that person tended to go on from the age of 16 until the early 20s, and the person believed that they were in an intimate relationship with the abuser. Does the Minister think that this new legislation would be another tool that the police could use to stop child exploitation?
The Solicitor-General: Certainly, in the context of a family relationship, there might be a situation where somebody has reached the age of 16 and this would apply. There are of course other sexual offences that could cover that conduct. The police, in looking at a particularly coercive relationship, might then uncover revelations about exploitation. That is why these reforms are so useful for the police. Through one doorway another door is often opened to even more serious or different types of offending, such as child sexual exploitation, on which the hon. Lady has campaigned so eloquently.
We have carefully considered the maximum sentence. Such a pattern of abuse is illegal whether it is within or outside a relationship. We have decided on a maximum sentence of five years’ imprisonment, because we want to recognise the damage that coercive or controlling behaviour can do to its victims. That penalty is commensurate with the maximum available on the stalking offence in the Protection of Freedoms Act 2012. This new offence will send a clear message to abusers and victims alike that domestic abuse is wrong and it will not be tolerated in this country. If you are a victim, come forward and gain access to protection and justice. If you are an abuser, change your behaviour or face the full impact of the law. It is plain and simple.
This legislation is not a substitute for other vital work that the Government are doing to improve the response to domestic violence. The new offence cannot be implemented without an effective police response. The work that the Home Secretary is doing to drive improvements through her national oversight group on domestic abuse remains as high a priority as ever but
The new offence is an opportunity to take an enormous step forward towards the eradication of the scourge of domestic abuse from our society, and I commend the new clause to the Committee. I am conscious that the right hon. Member for Dwyfor Meirionnydd has new clauses in this group, which in part overlap with the Government’s new clause, and that the hon. Member for Feltham and Heston has tabled new clause 27. I look forward to hearing what they have to say about the new clauses, and I will respond when winding up the debate.
Mr Llwyd: The Solicitor-General pointed at me when he mentioned the word “stalking”. That was not because I am a stalker but because I had the privilege of chairing the group that brought in that law two years ago. Now another law I have worked on might well come through. The situation of two in three years is like London buses: there are many years of nothing, and then one after the other. As the Solicitor-General said, he had great experience of domestic violence and abuse while in practice as a lawyer. I share that experience, both as a solicitor and as a member of the Bar. I believe that this has been a long-standing void in our domestic violence laws. I am extremely pleased that the Government are moving forward on this today. I rise to speak to new clauses 3, 4, 5 and 6, which stand in my name.
Essentially, new clause 3 sketches out the offence of coercive control in the context of domestic violence. It deals with making regulations and also concerns the maximum sentence. New clause 4 if enacted would ensure that there would be no statutory time limits on the offence. I know that the Solicitor-General will respond positively on that.
New clause 5 deals with the definition of domestic violence, which is more or less in line with what the Government have put in their clause. New clause 6 is entitled: “Domestic violence: policies, standards and training”. That new clause is key. It is vital that we get this matter right. There is no point whatsoever in introducing a law such as this, and I readily thank the Government for listening to the arguments for it, unless the prosecuting authorities are up to speed and ready to implement it properly.
It took some time to get police forces up and down the UK ready for the stalking law; now they are ready, but there was about a two-year time lag. This measure is as important, because the fallout of getting it wrong would be very damaging to many families. Let us not forget something the Solicitor-General said: such a fallout would be potentially damaging not only to the male and female in the association, but, crucially, to the children. We owe children a duty always.
I am delighted that the Government have accepted the rationale behind my ten-minute rule Bill. I shall support Government new clauses 9 and 10, although I wish to seek clarification from the Solicitor-General on some points in those new clauses.
Members of the Committee may be aware that, in February last year, I introduced a ten-minute rule motion that sought to criminalise all aspects of domestic violence and to bring in the offence of coercive and controlling
I am happy to say that I had the support of the hon. and learned Member for South Swindon, now Solicitor-General, who was then a Back Bencher; the hon. Member for Ayr, Carrick and Cumnock (Sandra Osborne); the right hon. Member for Chesham and Amersham (Mrs Gillan); the hon. Members for Manchester, Withington (Mr Leech), for Colchester (Sir Bob Russell) and for Hayes and Harlington (John McDonnell); the hon. and learned Member for Harborough (Sir Edward Garnier); the hon. Members for Brighton, Pavilion (Caroline Lucas), for South Down (Ms Ritchie), and for Islington North (Jeremy Corbyn); and my hon. Friend the Member for Arfon (Hywel Williams) when I introduced my Bill.
My motivation for introducing the Bill was that, although the Government adopted a new definition of domestic violence in March 2013, it was not yet a statutory definition, meaning that until this Bill Committee there were gaps in the law whereby individuals could perpetrate domestic violence and abuse and could not be arrested for that behaviour.
“Any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass but is not limited to the following types of abuse:
Members will notice that new clause 5(1) defines domestic violence in those terms and would put that definition on the statute book. That would be an important and perhaps symbolic move, so I still urge the Government to take similar measures to set out the definition in the Bill.
As has been said, last summer, the Home Office launched a consultation, which I believe triggered about 750 to 850 responses, asking whether a new offence of coercive control should be introduced. I understand that an overwhelming 85% of respondents signalled that they would support such a move. So I am gratified to see the Government new clauses, although there are still some points I wish to raise.
Members will notice that the penalties set out for being found guilty of an offence of coercive control under new clause 3, which I tabled, are stricter than those set out by the Government in new clause 9. I maintain that offenders who are found guilty on conviction on indictment should be liable to imprisonment, in the worst cases, for up to 14 years if their behaviour merits such a term, although I heard what the Solicitor-General said—the sentence would be in line with that for the more serious stalking offences in the Protection of Freedoms Act 2012.
I have already welcomed clause 65, which recognises that psychological harm in relation to child cruelty can be every bit as debilitating as physical violence. My new
A pattern of behaviour that involves coercive and controlling behaviour and a catalogue of abuses that a perpetrator uses deliberately in a crafted fashion is not a crime of passion that happens on the spur of the moment. Such behaviour has been described by some criminal behaviour psychologists as emotional rape, which, though extreme, goes some way to capturing the incapacitating impact it can and does have on its victims. For that reason, I do not think that a maximum of five years’ imprisonment is a strict enough penalty for the worst offenders, but I await the response of the Solicitor-General.
A recent BBC “Panorama” episode, which centred on coercive control, claimed that one in 10 prosecutions now involves domestic violence, but only 6.3% of domestic violence cases reported to the police in England and Wales in 2012-13 resulted in a conviction. At the end of last year, my office undertook research into the laws covering domestic violence in four states of the United States: New York, North Carolina, Massachusetts and Texas. We were assisted by an American intern who was placed with us through the Hansard scholars programme. Where possible, direct contact was made with the assistant district attorneys and advocacy organisations in those states.
We discovered that in New York, when police are called to respond to a domestic violence incident, it is mandatory that they arrest the abuser on sight and fill out a domestic violence incident report. The most recently available figures showed that the Bronx had a 39% incarceration rate for cases involving domestic violence, and Brooklyn had a 35% rate. From our communications with Amily McCool, the systems advocacy co-ordinator of the North Carolina Coalition Against Domestic Violence, we discovered that in North Carolina, individuals have two years to bring a misdemeanour offence, and there is no statutory time limit for felonies. According to our research, that state had a one third conviction rate and a 23% rate of misdemeanour prosecutions that resulted in a sentence of incarceration.
Telephone conversations were conducted with Amily McCool; Rachel Newton, an assistant district attorney in Erie County in western New York; and Aaron Setliff, director of policy at the Texas Council on Family Violence. Each reported that, on average, victims of domestic violence in their states wait for seven or eight instances of abuse to occur before reporting the behaviour to the police. According to Refuge, victims in England and Wales suffer an average of 35 instances before reporting to the police. Therefore, tougher domestic violence laws are obviously needed to combat the lack of awareness and possible lack of confidence in our justice system to punish the behaviour and protect the victims. I am sure we all agree that we owe it to victims of domestic violence, whatever the nature of that violence or abuse, to ensure that perpetrators are brought to justice and that victims will be released from what is an imprisonment for them.
Subsection (3)(b) of new clause 3 requires a court, local authority and other public bodies not to disclose the current address of a victim, if it would place that
Subsection (3)(c) of new clause 3 gives the court the power to require perpetrators of coercive control to undergo appropriate counselling programmes to address their behaviour. The purpose of new clause 4 is to ensure that prosecutions for coercive control will not be subject to statutory time limits. Section 127 of the Magistrates’ Courts Act 1980 provides a time limit of six months from the time that an offence is committed to the laying of an information. This applies to summary offences only, but I anticipate that the answer from the Solicitor-General will be that this offence will be an either way offence, in other words, it could be tried summarily or on indictment.
Mr Llwyd: I am grateful to the Solicitor-General, because that is an important point. That is a considerable step forward. New clause 5 sets out a definition of domestic violence as well as coercive controlling behaviour. I draw the Committee’s attention to subsection (2) of new clause 5 which sets out that coercive controlling behaviour involves a course of conduct that knowingly causes the victim or child to fear violence or experience serious alarm or distress which has a substantial impact on their day-to-day life and activities. I welcome the fact that subsection (4) of Government new clause 9 addresses the same points.
Finally, new clause 6 sets out that the Secretary of State shall require every police service in England, Wales and Northern Ireland to develop and adopt written policies and standards for officers’ responses to coercive control and domestic violence incidents, within one year of the Act coming into force. The new clause will also ensure that all police officers will have appropriate training in how to deal with these offences and provide adequate support for victims of this offence. I believe that the Minister will say something about training when he responds, so I will not dwell on that point.
I welcome the fact that, in new clause 10, the Government have conceded the need for the Secretary of State to issue guidance on how cases involving coercive control should be investigated. However, I am a little concerned that they are not going far enough by putting a duty on police forces to train all officers in the new offence. I urge the Government to consider doing so. I think the Minister will respond on that point when he closes the debate.
I say this, not only because it is worth saying, but because my experience of the stalking law was that there was a period of about 12 months when relatively nothing happened. It took another 12 months for a good
There are a few more points on which I would welcome the Minister’s comments. I was originally concerned about the motivation behind new clause 9, subsections (8) to (10). Having spoken to Government Members, I now appreciate the nuances of when this limited defence could be used: if the defendant believes they are acting in the best interests of the victim, for example when the victim is mentally ill, and the defendant has to find a way to compel the victim to take medication or be kept at home for protection.
I am glad that the defence will not be available when a court is satisfied that the defendant has caused the victim to fear violence. I note that the provision complies with the European convention on human rights. However, I must say that groups such as Women’s Aid have been very concerned about this. Concerns about the tests are deeply held and are expressed by workers in the field of domestic violence, such as probation officers. Abusers can often be manipulative and are frequently the dominant partner in the relationship. They dominate, manipulate, undermine and make life miserable for their partner.
We have to look at that carefully. No doubt some will give the excuse that they are acting in such a way only because they love the victim. I ask for clear assurances that the guidelines that police will receive on this test will make it 100% clear that defendants must prove beyond reasonable doubt that the behaviour was in the best interests of the victim, and that the test would be objective and sparsely applied. When I first read the defence I was very concerned, and I know others in the Committee from all parties shared that view. Women’s Aid is still very concerned. We have to be very careful, lest we undermine all the good work that is included in the two new clauses.
I have already asked whether the new offence will be subject to time limits, and I anticipate a positive answer. I would also be glad to have clarification on whether the police will be able to make an arrest in cases where a victim has already divorced their partner and even settled financially. The new clauses proposed by the Government centre on controlling or coercive behaviour that takes place in an
Age UK is also concerned that the definition of family members in proposed new clause 9 is limited to those who live together, and would not cover family members who suffer from coercive control at the hands of another family member who does not live with them. That can take many forms, for example, financial abuse.
I have been approached by criminal justice professionals who have queries about how the new offence would operate. They are keen to know whether police investigations into coercive control could force the disclosure of documents
I would welcome the Solicitor-General’s comments on all those points. As I have indicated, I shall not press my own clauses. I have of course read new clauses 9 and 10, and most of the contents of my clauses are encapsulated within those Government new clauses. I am delighted that the campaign, which began in February, has now seen the introduction of a very important law to bridge a gap that, I am afraid, has existed for some time. My particular misgivings remain, and I would be grateful if the Solicitor-General addressed them.
Seema Malhotra: It is a pleasure to speak in this debate and to follow the right hon. Member for Dwyfor Meirionnydd, who spoke extremely eloquently. He deserves a huge amount of credit for his work on this issue and indeed on the stalking legislation, on which I will also touch during my remarks. I also acknowledge the contribution of my hon. Friend the Member for Middlesbrough, who made some important points about refuges. Support for victims of domestic abuse and domestic violence is very important. That is one of the reasons why we have committed to funding for refuges of £3 million a year for the next five years.
I also want to acknowledge Hutoxi Davis and Jackie Duke in my constituency and in Hounslow for their work on this and for their advice on some of these issues, and the work of Carl Bussey, the borough commander in Hounslow. As I became the shadow Minister just a few months ago, talking to those in the justice system, local authorities and campaign groups, as well as the sector which deals with victims of domestic abuse and sexual violence, has been important. I will draw on a couple of case studies from my visits to Rise in Brighton, in which Rise board member Purna Sen played a very important part. I also acknowledge the work of Thangam Debbonaire of Respect, who contributed very helpfully to our thinking on these issues.
We very much welcome new clause 9. We are really pleased that it has been tabled and that we are debating the long-standing need for a change in legislation. Indeed, Labour has been calling for an offence of coercive control for some time. The shadow Home Secretary raised this issue back in 2012, so it has had an important history in the House. It is absolutely right that it has had cross-party support. Indeed, in July, the shadow Home Secretary also said that Labour would absolutely support and call for a specific offence of domestic abuse, with the scope for including emotional abuse and coercive control, which is so important.
Delighted as we are by the stage we have reached today, we all know that there is a huge amount more that we need to do to tackle the scourge of domestic abuse and domestic violence. Current laws have done very little to dent the number of cases that are reported every year. We have also been concerned about and have raised the use of inappropriate community sentences in
The policing of domestic abuse has been a matter of huge concern. The report by Her Majesty’s inspectorate of constabulary last March raised huge issues—deep, systemic issues—about the policing of domestic violence and domestic abuse. The Bill and our debates come at an important time, as the police look at how to reform their systems and their processes to support victims more effectively. The Police Foundation has also done some important work on this. We welcome the change in the law, but with the caveat that it must be used properly and effectively to tackle domestic abuse and give victims the confidence to come forward early. There will be issues, which we must address now, about how evidence will be collected and collated in instances of psychological and emotional abuse, the perpetrators of which see themselves as beyond the reach of the criminal justice system and the police.
Indeed, our partners in the sector, which have worked closely with hon. Members of all parties, provide ample evidence of that fact. Women’s Aid’s domestic violence law reform campaign, Paladin National Stalking Advocacy Service, and the Sara Charlton Charitable Foundation conducted a survey of survivors of domestic violence. Some 98% of those they surveyed had experienced
Within the current framework, if those behaviours were reported to the police, to date there would be very few arrestable offences, perhaps with the exception of stalking since November 2012. Perpetrators have been aware of the shortcomings of legislation and walked the fine line that allows them to control and manipulate their partners and family members without falling foul of the criminal law. It is time to ensure that the criminal justice system and the police move beyond seeing the scope of domestic violence as being about physical violence, and that we overhaul our approach to domestic abuse.
I echo and support some of the sentiments of the right hon. Member for Dwyfor Meirionnydd in his new clauses, one being the point about adequate training and guidelines for the police and other legal practitioners. It is incredibly important that we have that so that there is an understanding of how to collect evidence and bring an effective prosecution. Indeed, in the work that Vera Baird QC has done as police and crime commissioner in Northumbria, she has raised a number of issues that are important to address. One is the requirement for training for all judges on the new offence. Perhaps that should be a condition of hearing domestic abuse cases.
Last week, I met a woman who told me a sad story about how she had started off in a positive relationship, which changed when she was pregnant with the first child. The abuse was psychological, including a number
The impact of domestic abuse, as has been highlighted by other hon. Members, on children is tremendous, hence the need to have clarity around the law and intervene early. The woman told me about a traumatic experience that she had in court, where it was extremely difficult for her to give evidence. She was told that if she did not give evidence, she would be jailed for 28 days. At that time, she was four months pregnant with a second child. There are more sensitive ways of dealing with such matters, where there is a deeper understanding of what a victim is experiencing. Has the Minister considered whether there could be automatic special measures in domestic abuse cases, as there are in rape cases, where there is a particular issue around manipulation, fear and control that victims experience, often for many years to come as they rebuild their lives? As those in the sector have told us, it is currently too easy for abusers to get away with what they do, because they know that if there is insufficient physical evidence they might not be convicted.
The Solicitor-General: The hon. Lady makes a very interesting point about special measures While it is fresh in my mind, my understanding—which is substantiated by advice I have been given—is that special measures are available where the witness can demonstrate that the quality of their evidence will be diminished if they have to give evidence in the conventional way. Applications can be made in a variety of cases involving violence and other types of criminality. I envisage that this offence would certainly be encapsulated by the special measures regime with which the courts are familiar. I hope that that gives her some assurance.
Seema Malhotra: I thank the Minister for that intervention and I am extremely pleased to hear that. As this legislation comes into effect, it will be interesting to monitor how well it is being implemented and some of the issues that might be experienced, given that the same level of awareness might not exist across the country.
I have a few points of concern to raise before speaking about new clause 27. The first concerns the clarity of the definition and the proposed guidance. Again, I support the sentiments of the right hon. Member for Dwyfor Meirionnydd on this. The Government’s intentions are clear from the consultation paper in August, which focused on the specific offence of domestic abuse to fill what was seen as a gap: there was a need for greater clarity about coercive and controlling behaviour in intimate relationships, given that violent behaviours were considered to be effectively criminalised through existing provisions. I assume—and perhaps the Minister can clarify this—that the guidance will contain clarity on the definition of
It is difficult when there are violent and non-violent aspects of somebody’s behaviour and there are multiple offences that may need to be tackled under different legislation. Perhaps the Minister might also touch on this point. Although I understand that there are no statutory time limits for the new offence, when it comes to domestic violence cases, common assault is a common offence that has a six-month time limit. Therefore, if somebody reports both violent and non-violent aspects of abuse, but reports the non-violent aspects only after a year because of the trauma they have experienced, we could be in a situation where the non-violent aspects of the abuse can be considered under criminal law but the violent aspects cannot. I would be grateful for clarity about whether that is the case and whether that can be looked at again.
My second concern is about the issues that were raised by the right hon. Member for Dwyfor Meirionnydd, who also talked about Women’s Aid’s concerns about the defence. I thank the Minister for the letter that she sent to the shadow Home Secretary and me on this issue and the need for a defence, which I know has been drawn on. I have some further points. As has been stated, the defence is in two parts: subsections 8(a) and 8(b). This offence is often a particularly mendacious and manipulative form of abuse. It is often difficult to detect, recognise and prove, and we will face challenges as we move through cases for the first time. It is often based on the perpetrator exerting undue influence and control over the victim through intimidation or emotional manipulation.
To have a defence based on A believing that he or she was acting in B’s best interest could lead to a subjective justification that could be misused by the perpetrator, in a way that lends itself to further abuse within the court system. It is important to be careful with the wording, particularly in subsection (8)(a).
A very successful public figure—not in politics—spoke to me, giving no indication of trauma, after I told her of my new role. She described her experience of being abused at home and what she had been through post-university in what had seemed a blossoming relationship. She talked about the different roles that the perpetrator played in her life.
“When a woman meets a man and he is charming, then turns nasty and controlling, then abusive, then sexually abuses you, then cries, what do you do? They grind you down so much and then they are the ones who pick you up. They are your abuser and hero all in one.”
There is something deliberately and deeply manipulative about such a relationship. Then, six months or a year later, the perpetrator says in court, “It was in her best interests that I did this to her.” Imagine having to go through that experience.
Did the Minister consider whether subsection (8)(b) could offer a more objective defence, where the behaviour was in all circumstances reasonable? Would that sufficiently cover the different scenarios that are rightly of concern?
New clause 27 proposes a study by Government of the benefits of having a national register of domestic abusers and serial stalkers. That follows various campaigns and a recognition that we need to do more to prevent the risk of harm from growing numbers of serial stalkers and perpetrators of domestic violence.
We know that there are more than 1 million victims of domestic abuse each year. We know that every 30 seconds the police will receive a call about domestic abuse. We know that a recent British crime survey found that 89% of victims who experienced four or more incidents of domestic violence are women. Over 30% of women experience domestic abuse in their lifetime, often with years of psychological abuse. More than two thirds of cases of sexual assault or stalking in the UK are against women.
Mr Reed: I thank my hon. Friend for giving way and for that reference to Croydon’s campaign. I congratulate her on an incredibly powerful speech about the horrors of domestic abuse and how widespread it is. Croydon’s campaign was set up in light of the case of Paula Newman who was violently murdered by her abusive partner in November 2013 after a relatively short relationship. Neither the local authority nor the police were aware of the fact that her partner had a long history of violent abuse elsewhere. Because there was no national register, they were not alerted when he moved into the area and could offer no support to Paula on the risks of entering a relationship with him. Tragically, as a result of that she is now dead. Croydon is leading a campaign in local government for the establishment of a national register of domestic abusers. I hope the Government will, at least, explore that idea. I invite my hon. Friend to comment on that campaign.
Seema Malhotra: I thank my hon. Friend for his comments and pay tribute to Croydon council on their campaign. It has helped to bring together the work done by Laura Richards and ACPO, and Paladin’s arguments for such a register, and started a conversation about whether we need to explore this issue further. In Hounslow, Councillor Sue Sampson has been looking at what more we need to do to get better data on stalkers and to share that across forces for reasons that are very similar to those that my hon. Friend outlined.
There is no doubt that cases of stalking and harassment and the risks to victims are increasing. That includes the new ways in which people are approached, particularly through social media and spyware. There is a growing industry of harm to women and men, with stalking and its impact on the increase. This was described to me in conversations with ACPO. There is also ample evidence of serial stalkers as well as serial domestic violence perpetrators. A report on the facts about this issue, and the costs and benefits of a new measure in the future, could be the right way to start a conversation about whether we can do more to prevent harm to victims.
Other gaps need filling which could be considered as part of this measure or alongside it. For example, there are no sentencing guidelines for stalking behaviour, as
Some have raised questions about the purpose of the register. It could be a register for citizens to call up, such as under Clare’s law, or one that could improve the justice system. Our conversations so far have been much more in line with the debate about how we improve and join up the justice system to give forces more of the tools they need to be able to protect and intervene early. Consider the situation, for example, when somebody goes to the police for the first time in an area. The police may identify the perpetrator as someone who had actually been convicted elsewhere, possibly on more than one occasion. The register could highlight the potential seriousness and speed with which a domestic situation could escalate and provide stronger support to the victim at that time, who might otherwise continue without that knowledge and be unaware of how seriously the situation could develop.
The new clause calls for the commissioning of a report on the potential effectiveness of a national register of individuals convicted of more than one domestic abuse or stalking offence. It would ask key questions for protection and prevention, such as whether a national database should be available and accessible by all police forces. There would be a positive obligation to report a change of name or address or other possible relevant circumstances. The report would need to analyse the costs and benefits of such a measure. The current technical architecture of police and criminal justice information systems is a huge issue for the effective delivery of justice—I am sure that we would all acknowledge that. However, with local crime reporting systems, the police national computer, the police national database, and ViSOR we have potential options. We now need the analysis to see how these and other bits of the jigsaw puzzle can more effectively fit together. We believe that that analysis will be helpful in deciding whether this is a useful road down which to travel and how we can strengthen the tools of prevention to better tackle violence against women and girls.
Paladin has also provided us with a number of important case studies showing in stark terms the consequences of the ineffective system we have today. Indeed, Paladin has highlighted to me that it tends to do more joining up than the police. It can identify the same perpetrator in a different part of the country because it deals with different victims. That is an important consideration. Are we looking to the voluntary and support sector to actually do some of our policing for us when their resources are already stretched?
“He already had 23 convictions for violence and harassment, mostly towards other partners. However, Caroline would not have been able to learn of his violent history by Clare’s Law, as he was using a false name.”
“Her ex-partner Ben Blakeley was found guilty of her murder and sentenced to life. He has a history of serial abuse and was violent and controlling during all his relationships. Previous
A similar amendment was tabled in the other place by Baroness Smith and Lord Rosser. They asked whether serial stalkers should be added to the violent and sex offenders register and managed through the multi-agency public protection arrangements or “MAPA”. New clause 27 is slightly different. The Government’s reasoning for rejecting that amendment at the time was that they were looking at a range of options to strengthen responses to stalking and domestic violence, which would rightly include the police response to managing perpetrators of these serious crimes. That absolutely needs to happen. However, we are also talking about the serial nature of this crime. We absolutely support the goal of managing perpetrators of stalking and domestic violence and ensuring that that goal is effectively met through operation improvements.
The reason that we believe this report is so important is that it will help to inform the best way forward in terms of improving current databases and systems for stalking and domestic violence. That will hopefully feed into conclusions about the cost-effectiveness of joining up systems more effectively to prevent many more victims from harm in the future. I look forward to the Minister’s response.
Norman Baker: I welcome Government new clauses 9 and 10, which take matters forward in a helpful way. It is particularly good to see the progress that has been made over the past four years or so under the coalition Government in tackling violence against women and girls and, indeed, violence against men and boys; that factor should not be neglected when discussing these issues. I was particularly pleased by the introduction of the domestic violence protection orders and the domestic violence disclosure scheme. The latter seems to perform some of the functions which the Opposition’s national register seeks to discharge, though the hon. Member for Feltham and Heston makes an interesting point about whether people using false names can be captured by the disclosure scheme on that basis. My hon. and learned Friend the Minister might want to reflect on that narrow point.
I also want to draw attention to the comments of Women’s Aid on new clause 9(8). I do not actually believe, as the hon. Lady suggested, that deleting subsection (8)(a) would be helpful; in fact, it would weaken the subsection. However, I share the general concerns that we must ensure that this particular element of the new clause is appropriately worded and does what it is supposed to do, which is to provide a legitimate defence for those with a legitimate reason and not a way out for those who seek to exploit it.
“the very nature of coercive control is that both the perpetrator’s and the victim’s perception of what is in her best interest are commonly distorted. In a situation where the alleged perpetrator
Frankly, I am not quite sure what the answer is. Personally, I find the word “reasonable” in subsection (8) a little jarring, and “justified” might be better, but I am not a parliamentary draftsman. However, I ask the Government to look again at the words in that subsection to make sure they are absolutely accurate in terms of what we all want to achieve.
Will the Minister explain again—either now or in writing subsequently—the explanation he gave to my intervention earlier about the definition of a child? I do not want to labour the point, but new clause 9(2) refers to
Subsection (3), which relates back to it, talks about a child being under 16—that is the same family. However, subsection (7), which defines a child as being under 18, refers back to subsection (6), which also talks about people being in the same family. There is an issue there, and there may be an explanation, which I may have failed to understand when the Minister gave it to me earlier, but we should be clear. As Members will know, what happens to 16 and 17-year-olds is often brought up in these cases, and we need to be sure we are not creating a loophole.
I am not clear from new clause 9 what the time scale for those two occasions is—they could, in theory, be 20 years apart. We need to be clear what the Government have in mind. Twenty years apart would probably not be a fair way of describing it, whereas six months apart would clearly be very relevant. Perhaps that will be picked up in the Government’s guidance on new clause 10, but the point needs to be nailed down a bit more.
The right hon. Member for Dwyfor Meirionnydd made a good speech, and he has made some great contributions on this area over some time. He talked about the low prosecution and conviction rate, which is absolutely a concern for all of us. However, I hope he will recognise that this is not simply a matter of legislation—it is also a matter of enforcement and the way the police approach these issues. That is why Her Majesty’s inspectorate of constabulary looked into them and why the Government were completely right to require each of the 43 police forces to say what they were doing about domestic violence and domestic abuse. No doubt, subsequent to my departure, those reports have arrived at the Home Office and are being pursued as they should be.
It is not necessarily the case that tougher domestic violence law is the answer; we need a combination of appropriate law and appropriate enforcement. My impression was that a large part of the problem was that the police did not have the correct mindset to take matters forward and were not looking at this issue with
Colleagues on both sides of the House will remember that the police were not even photographing examples of domestic abuse when they came across them, and evidence was not collected. There was a catalogue of failures, and I hope that is being sorted out. Nevertheless, that is a major reason why the conviction rate is so low in this country compared with elsewhere.
The right hon. Gentleman has a couple of good points in his new clauses. Again, it would be helpful if the Government reflected on those points to see whether there is some merit in taking them forward. I was struck by his point about not disclosing current addresses or postcodes—that was in new clause 3(3). Certainly, the case he referred to made that point well. There was also his point about the power to require those convicted of an offence to complete a domestic violence programme or an appropriate counselling programme. Again, the point was well made. We should reflect on those two points to see whether they can be taken forward sensibly—not necessarily through legislation, but through guidance or some other means—because they have validity.
Lastly, I draw the Minister’s attention to a private Member’s Bill in my name that is being debated on Friday. It seeks to deal with the one area in which we have not been as successful as I would have liked us to be in government, namely the provision of refuges throughout the country. That is because they have not been centrally controlled—I am not saying that they should be centrally controlled, but central Government’s levers of influence have been fewer than in other areas. Different local authorities are taking different approaches, so we have seen a patchwork outcome. As a result, in some areas refuges are not present, or poor commissioning by local authorities has achieved the wrong result with the money they have. For example, some might exclude women who come from a different area and limit access to women from that area, which is clearly bonkers. If people are trying to escape violence, they do not want to be in a refuge close to where they were living. Such issues need to be sorted out, so I commend my private Member’s Bill to the Minister. I trust that he will have a word with the Whips on Friday to ensure that it does not face objections.
Andy McDonald: It is a delight, as ever, Ms Clark, to serve under your chairmanship. I wish to flag up one or two issues, but also to congratulate Members on both sides of the Committee, because there have been some terrific contributions. The level of knowledge and expertise is heartening.
I want to flag up something for the Solicitor-General, not for a response today, because that would not be right, but for future reference. Often, domestic violence is not carried out by a single perpetrator; it is inflicted by many people in a family, or by an extended network. In that context, I have a concern about the disclosure of information by third parties as to the whereabouts of a victim of domestic violence and about steps taken by third parties to undermine the effectiveness of any court order, be that by disclosing information or interfering with the safety of children.
The Solicitor-General might wish to reflect on that and to have a discussion on a later day, but another issue is to do with new clause 6. The right hon. Member
The Solicitor-General: I am grateful to all right hon. and hon. Members who have taken part in probably one of the most significant debates that we have had in Committee. In order to do as much justice as I can to everyone, I will try to answer all the points made.
I will deal first with the speech made by the right hon. Member for Dwyfor Meirionnydd, who talked about pieces of legislation being like the proverbial buses that do not come around and then there are two at once. I was waiting at the bus stop with him—on two occasions. Our work together on the law on harassment and stalking and now on domestic abuse will certainly live long with me as proof that things can be done by this place and that change can be made if there is a will and a cross-party purpose to boot.
I want to deal with the new clause that the right hon. Gentleman tabled and consider properly the reasons for the Government’s slightly different approach. The Government new clause has no reference to domestic violence or domestic abuse. That is deliberate. We are dealing with specific behaviour that can be characterised as coercive or controlling, but that should not be the subject of over-prescriptive statutory definition, which would do a disservice to victims. Myriad different relationships exist that are clearly, to the observer, dysfunctional, controlling and coercive. Victims would not be assisted by the creation of artificial definitions that could be misused. We did not fall into that trap when it came to the law on stalking and harassment. We should not fall into it now with the law on coercive and controlling behaviour within the context of domestic abuse.
The law serves a different purpose from the published guidance and the definition of domestic violence that is contained within it. We must ensure that we do not duplicate existing law, that the law is practical and that it can be used by criminal justice professionals. In drafting the new offence we worked carefully with the draftsmen to make it clear but not over-prescriptive.
In the consultation, we identified a gap in the law—behaviour that we would regard as abuse that did not amount to violence. Again, that is perhaps the important difference between the thrust of the probing provisions tabled by the right hon. Gentleman and the Government new clause. Violent behaviour already captured by the criminal law is outside the scope of the offence. Within the range of existing criminal offences a number of tools are at the disposal of the police and prosecution, which are used day in and day out. We do not want duplication or confusion; we want an extra element that closes a loophole.
Having listened carefully to front-line professionals and groups such as Women’s Aid, and other groups mentioned in the debate such as Paladin and the Sara Charlton Charitable Foundation, we understand fully that the stalking and harassment legislation, which should afford protection for victims through the criminal and civil courts, is applied inconsistently when it comes to intimate relationships. We believe that our new clause will deal with that problem.
We do not want victims to be deterred by a legal framework that does not work for them and that captures circumstances that fall short of the isolation and control they have experienced. I fear, despite the right hon. Gentleman’s admirable intentions, that his new clauses could create loopholes and that they would fall short of the aspirations that he rightly has.
It is right to deal with the defence, as several Members have raised that. A balance must be struck. It is important to remember that the offence is not a subjective test that can easily be manipulated by cunning perpetrators. Importantly, under the provision, such behaviour must be reasonable in all the circumstances. It is not just a question of A saying “I think it was in B’s best interest.” There is an objective element to the test that allows the magistrate or jury to apply commonly understood principles of justice. What is reasonable in the circumstances should be considered through the objectivity test.
The burden is evidential rather than legal, rather as it is with self-defence—something that many right hon. and hon. Members will be familiar with. Again, we know that in the law of self-defence there needs to be a genuine and reasonable belief. It cannot simply be used as an easy get-out when it comes to the commission of offences. I am satisfied that the way in which the defence is drafted—let us not forget it excludes the threat of violence, which is important—will provide the necessary balance and take out those obvious cases of care that should not be within the purview of the provision.
Mr Llwyd: The Solicitor-General understands the concerns—he has addressed them—but he will also know that people such as Harry Fletcher, who has been working extremely hard in putting these new clauses together, are still a little concerned. I am sure the Solicitor-General will ensure that prosecutors are fully up to speed on this matter, otherwise—I know he is aware of it and that he does not want it to happen—this could undermine the efficacy of the whole new clause, we would all be wasting time and, worse still, be raising hopes outside.
The Solicitor-General: I agree with the right hon. Gentleman, which is why the training of police, prosecutors and judges—everybody involved in implementing the provisions—is vital. I want to make sure—he made this point in the context of stalking—that any commencement of the provisions is consistent with proper training. It will take time to get proper training done, but let us do it properly so that we do not unduly raise the expectations of victims, only to find that we see poor implementation, a lack of understanding and in effect a complete let-down of those whom we seek to protect through the new provisions.
The right hon. Gentleman asked various questions, which he helpfully put in writing, and I have written to him. He will have received my letter, which has been copied, today. I will deal quickly with some of the points he raised. On the application of the new offence where two former partners no longer live together, the offence will not apply in such circumstances, but of course we have existing legislation on stalking and harassment to deal with the circumstances in which coercive behaviour goes on beyond the marriage and the relationship, and beyond the couple’s living together. The provision deals with the loophole where people are still in an intimate relationship.
I hear what the right hon. Gentleman says about a maximum sentence. I entirely agree that very long prison sentences, which are available for very serious offences, should be meted out. We are dealing with serious conduct, but non-violent conduct, which is why the offences are either way and therefore triable in the Crown court, and why we have adopted the same level as adopted for the most serious stalking offences following the reforms.
The Solicitor-General: What I am saying is that it is not dependent upon the actual act of divorce or termination of a partnership. I am talking about when couples are not living together. They might not be nisi or absolute, or there might not be a dissolution of the partnership. It is where they are not living together. That is the point that was concerning some practitioners in the field. I hope I have clarified that point. I took very seriously the point that was raised not only by the right hon. Gentleman, but by Advocacy After Fatal Domestic Abuse, which was another charity that took the trouble to contact me directly about the matter.
I will also put on the record the fact that I met Women’s Aid late last week to talk about the concerns that it had about the defence and about its application. I think we agree absolutely that training is key.
On anonymity for victims, a powerful point was made about Eve’s law. I am very familiar with that campaign and, in particular, with the problem that Eve Thomas had when it came to the civil jurisdiction. When it comes to the criminal jurisdiction, the Coroners and Justice Act 2009 confers powers on the court to make a witness anonymity order.
I assure the right hon. Gentleman that the Government’s violence against women and girls action plan, which is for this year, is empowering the Home Office and the Ministry of Justice. They have committed to producing a new code of practice for protecting identities and safe addresses of domestic abuse victims. That has to apply across the piece. Eve’s campaign and Eve’s law is about ensuring that the criminal, civil and family jurisdictions
I want to mention perpetrators and perpetrator programmes. I am sure that a lot of right hon. and hon. Members have been involved in their constituencies, as I have, in making the point that, if we do not deal with the perpetrators, we will never fully deal with the scourge of domestic abuse. It is important that male role models stand up and talk about how wrong domestic abuse is—I certainly have in my capacity as a constituency MP—and that work is done to ensure that there are accredited programmes. I am pleased to say that the Offender Rehabilitation Act 2014 will introduce a new rehabilitation activity requirement, which courts can use to determine appropriate interventions, including programmes aimed at domestic violence perpetrators.
Seema Malhotra: I wish to acknowledge the point that the Solicitor-General made, in relation to Eve’s law and campaign, about the importance of anonymity in court. I want to pick up on the points that he is making, very effectively, about perpetrator programmes by recognising the work of Respect, which this week launched its final report on Project Mirabal, which contains some good insights and lessons that I am sure will continue to be valuable in the debate about perpetrator programmes and what makes them effective.
The Solicitor-General: I am grateful to the hon. Lady for bringing that up. In that context, it is right to talk about the domestic violence protection orders—the new civil orders that deal with powers for the police and magistrates courts to put in place protection in the immediate aftermath of a domestic violence incident, preventing perpetrators from returning to the residence and from having contact with a victim for up to 28 days. That gives the victim breathing space so that they can consider their options, rather than in the context of a constricted and often panicked immediate reaction when nobody has any time to think straight or to come to some sort of conclusion about their options.
One option that a victim might choose during that 28-day period is the application for a non-molestation order. Breach of those orders can be a criminal offence. After trial, there is the power to apply for restraining orders in domestic violence and abuse cases on the conviction or, in fact, the acquittal of a defendant. Criminal behaviour orders were introduced by the Anti-social Behaviour, Crime and Policing Act 2014 and can be issued by any criminal court against an offender who is likely to cause harassment, alarm or distress to another person. They can include not only prohibitory requirements, but positive ones to get the offender to start to address the underlying causes of their behaviour.
If perpetrator engagement is done well, it can be effective. In the minds of many victims, there are concerns about how perpetrators are engaged with. Practitioners in the field understand that. Sensitively applied, thorough, careful perpetrator engagement programmes can work—not in every circumstance, but where it is finely judged, they are a proper option.
Police standards and training are the thrust of new clause 6. Last March, there was the important report from Her Majesty’s inspectorate of constabulary, which
The hon. Member for Feltham and Heston referred to the police and crime commissioner for Northumbria. One of my predecessors, Vera Baird QC, is doing admirable work in providing some leadership on training, particularly of the judiciary. It is an example of how police and crime commissioners work and are doing an effective job. We should remember that in the context of the wider debate on their efficacy. They do have a role to play, and Vera Baird is certainly doing that.
The right hon. Member for Dwyfor Meirionnydd asked about the gathering of evidence. I assure him and the Committee that section 8 of the Police and Criminal Evidence Act 1984 will apply to investigations of the new offence of coercive control. It allows the police to apply for search warrants to gain access to materials, such as bank statements, that are likely to be of substantial value to the investigation where they are relevant evidence. We can already think of examples of coercive control, such as where one bank account or debit card is controlled by one partner, with no access to finance or resources for the victim. That would clearly be important evidence.
That brings me to the general point on how evidence is to be gathered. I have given the right hon. Gentleman one example. We already have experience under the new stalking and harassment legislation of how to gather evidence on a course of abusive conduct. It all starts with a properly gathered complainant’s statement, painstakingly setting out the course of events that that person has had to live with. From that section 9 statement should flow a police investigation that seeks to substantiate the claims that are made. It is not to start with an impossible task by any means. Yes, there will be some complex cases, but experience has shown that neither the police nor the Crown Prosecution Service has been deterred from pursuing cases to successful conclusions, and I see no exception to that here. When it comes to detail, we will publish statutory guidance that will address the issues and concerns raised by Members.
I wholeheartedly agree with the sentiment behind new clause 27, which was tabled by the hon. Member for Feltham and Heston. The police, wherever they are in the country, should have ready access to information on serial abusers and stalkers. That is absolutely vital if we are to manage effectively the risk that they pose. From my many meetings with such organisations as Paladin, I understand the need for risk management and risk assessment of serial perpetrators.
The hon. Lady referred to the need to establish a bespoke register of such individuals. As I understand it, the new clause is slightly different from the Lords amendment, in that it does not propose a fully blown register as pursuant to the Sex Offenders Act 1997, which created a register on which all certain types of serious sex offender have to register on conviction. The new clause proposes more of a database and sets out the means by which information would be collected. It is important to note that convicted stalkers and domestic abusers are already captured on the police national computer, but we should always look to try to improve how data are recorded, accessed and shared.
Seema Malhotra: I want to touch on the point about what information is held on the police national computer versus the police national database. It is not clear what is held or what is transferred from local forces, where 43 police areas have their own local databases. There is inconsistency about what goes on to the police national database. On the police national computer, I do not believe that there is anything that would automatically identify domestic violence perpetrators, because they could be prosecuted and convicted for a range of crimes. Unless there is a flag on there saying DV, there would be no way of knowing that that common assault offence was DV-related. There are still conversations to have about what is held and what is accessible for the purposes of this policy goal.
The Solicitor-General: I note what the hon. Lady says about perpetrators and offenders who have a range of offences. Sometimes in the past, when there has been a lead offence, perhaps involving serious violence, that has been flagged, but it has not necessarily been reflected in the data.
There is, of course, a difference between the police national database and the police national computer. The difference is essentially about intelligence, as opposed to the fact of conviction. The PNC holds details of all convictions and cautions for recordable offences. The PND holds data on crime custody records, child abuse, domestic abuse and intelligence. In addition, the PND will link records from the different systems and different forces into a match group, which is deemed to pertain to one real-life individual, so there is a more complete picture of the offending behaviour. Through that, alerts can be sent to notify officers when new data on a person, location, object or event are loaded on to the PND.
These are current data: 37 out of 43 forces provide daily uploads of data on domestic abuse cases; three provide monthly updates and three are currently implementing new systems, and consequently uploading legacy updates only. Daily data loaded to the PND are matched and indexed and available to all forces within 24 hours.
I hope that I can offer the hon. Member for Feltham and Heston some reassurance. It is possible to flag recorded offences on the PNC as domestic abuse cases. We know, however, following the HMIC report, that that is not done consistently. We are addressing that by mandating a national data standard from 2015-16 that will ensure that all forces systematically capture all convictions for domestic abuse-related recordable offences. That is an important change that will go a long way to dealing with the mischief she rightly identifies.
Mr Reed: I am working closely with Croydon council on its campaign. It insists, as do the local police, that the existing ways to capture and share data are inadequate to alert them to the risks. The Minister says that the Government are looking at new ways to capture that data, but will he at least agree to consult the sector directly affected—voluntary organisations, local authorities and police—on whether what he proposes will meet its requirements for effectiveness before he takes a final view on the register?
The Solicitor-General: I am grateful to the hon. Gentleman. What I can say is that the Government will look very carefully at the rolling out of the national data standard to make sure that the aspiration and the recommendation made by Sir Tom Winsor is carried out. We want a national flagging system so that the sorts of problems that his council and local police officers talk about are dealt with. We do not have that at the moment. We have the national database, which can give a picture of individuals, but we still do not have consistency on the PNC. It is this year that it is happening. We need to keep a very close eye on the rolling out of the national data standard and if that, for whatever reason, still does not deliver what we all want to see, then, of course, all these matters should be looked at in due course.
It is a question of continually monitoring the situation, but it is important to note that the Government are already taking real action to deal with the problems that we have talked about. It is not, by any means, the only step we are taking to manage effectively the risk posed by serial perpetrators. Following the report, the Home Secretary’s national oversight group on domestic abuse is overseeing work by the College of Policing to evaluate current risk assessment techniques and to provide practical advice on how to get the best from them. The college’s What Works Centre for Crime Reduction is also undertaking a review of the evidence base on the effectiveness of criminal justice interventions in reducing domestic abuse. That includes the effectiveness of perpetrator programmes, to reference comments I made earlier.
Police force action plans, which were published following the Home Secretary’s letter to chief constables, demonstrate that the police are actively focusing on effective and
I shall deal briefly with the points made by my right hon. Friend the Member for Lewes. On the question of “two or more occasions”, that is, quite properly, deliberately left open to allow proper consideration of the full circumstances of the case and we will provide further guidance on this in the statutory guidance, as he suggested. Taking a leaf out of the harassment and stalking book, it will depend very much on the facts of each case. A course of conduct has to be established on at least two occasions under that legislation and it has been proved to work very well. There have been a number of case authorities about the nature and frequency of incidents, but there is no hard and fast rule, nor should there be, because each case will be different and will depend upon individual evidence.
I remind my right hon. Friend of where we are. He did a lot of work when he was a Minister on the investment that we have made over the past two years—up to £10 million—to stop refuges closing and to help local authorities grow refuge provision for vulnerable victims. This is all part of the work we have to do to increase confidence among victims that not only will they have a safe haven if there is nowhere else to go, but that they will be listened to with the utmost seriousness and taken seriously when they make a complaint about violence or coercive and controlling behaviour.
In putting forward the offence in new clause 9, the Government considered very carefully the 757 responses to the public consultation. We have used that feedback to hone our proposals and to ensure that we can deliver the best possible outcome for victims. Having heard my explanations, I hope that my right hon. Friend and the other Members of the Committee who have spoken will understand why the Government’s new offence is framed as it is and will withdraw their amendments. I firmly believe that our proposals will deliver our shared aim plainly and proportionately.
Mr Llwyd: The Solicitor-General has examined the amendments in great detail and responded in full. I do not think that I could have expected any more, to be honest. New clauses 3 to 6 are, more or less, encapsulated in new clauses 9 and 10. It would therefore be churlish and not a little foolish of me to do anything other than say that I will not press new clauses 3 to 6 to a Division.
Seema Malhotra: I also acknowledge the detail with which the Minister has responded. On new clause 27, I was pleased to hear a positive response with acknowledgment of the issue and of the fact that we may need to look at whether current arrangements are fit for purpose. We will not press the new clause on this occasion but reserve the right to raise the issue again following further exploration.
“(1) The Secretary of State may issue guidance about the investigation of offences under section (Controlling or coercive behaviour in an intimate or family relationship) to whatever persons the Secretary of State considers appropriate.
(2) The Secretary of State may revise any guidance issued under this section.
(3) The Secretary of State must arrange for any guidance issued or revised under this section to be published.”.—( The Solicitor-General .)
This New Clause confers a power on the Secretary of State to issue guidance about the investigation of offences under New Clause (NC9) [Controlling or coercive behaviour in an intimate or family relationship].
“(1) Regulations may make provision conferring power on a court to make a telecommunications restriction order.
(2) “Telecommunications restriction order” means an order requiring a communications provider to take whatever action the order specifies for the purpose of preventing or restricting the use of communication devices by persons detained in custodial institutions.
(3) Regulations under this section must—
(a) specify who may apply for telecommunications restriction orders;
(b) make provision about giving notice of applications;
(c) make provision conferring rights on persons to make representations;
(d) specify the matters about which the court must be satisfied if it is to make an order;
(e) make provision about the duration of orders (which may include provision for orders of indefinite duration);
(f) make provision about variation (including extension) and discharge of orders;
(g) make provision about appeals.
(4) Regulations under this section may—
(a) make provision for a telecommunications restriction order to specify that a requirement of the order is not to apply in particular circumstances;
(b) make provision authorising a court to include in an order a requirement for the person applying for the order to pay any or all of the costs of complying with it;
(c) make provision about time limits for complying with orders;
(d) make provision about enforcement of orders (which may include provision creating offences);
(e) make provision about costs (or, in Scotland, expenses) in respect of legal proceedings;
(f) make different provision for different purposes;
(g) make incidental, consequential, supplementary or transitional provision, including provision applying any enactment (with or without modifications).
(5) The power to make regulations under this section is exercisable—
(a) in relation to England and Wales, by statutory instrument made by the Secretary of State;
(b) in relation to Scotland, by the Scottish Ministers.
(6) A statutory instrument (other than a Scottish statutory instrument) containing regulations under this section is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
(7) Regulations made by the Scottish Ministers under this section are subject to the affirmative procedure.
(8) In this section—
“communication device” means an item specified in section 1(3) of the Prisons (Interference with Wireless Telegraphy) Act 2012 (mobile telephones etc);
“communications provider” means a person providing a service that consists in the provision of access to, and of facilities for making use of, any telecommunication system (whether or not one provided by that person);
(a) in relation to England and Wales, the county court;
(b) in relation to Scotland, the sheriff;
“custodial institution” means—
(c) in relation to England and Wales, a prison, young offender institution, secure training centre or secure college;
(d) in relation to Scotland, a prison or young offenders institution;
(e) an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978;
(f) an enactment contained in, or in an instrument made under, an Act of the Scottish Parliament;
“telecommunication system” means any system (including the apparatus comprised in it) that exists (whether wholly or partly in the United Kingdom or elsewhere) for the purpose of facilitating the transmission of communications by any means involving the use of electrical or electro-magnetic energy.”.—( The Solicitor-General .)
This New Clause enables the Secretary of State and the Scottish Ministers to make regulations, subject to the affirmative procedure, conferring power on the civil courts to make an order requiring a communications provider to take action to prevent or restrict the use of unauthorised mobile telephones etc by prisoners.
‘(1) The Sexual Offences Act 1956 is amended as follows.
(2) In section 28 (Causing or encouraging prostitution of, intercourse with, or indecent assault on, girls under sixteen)—
(a) in the title of the section, for “prostitution” substitute “the sexual exploitation”;
(b) in subsection (1), for “prostitution” substitute “sexual exploitation”; and
(c) in subsection (2), for “become a prostitute” substitute “been sexually exploited”.
(3) In section 29 (Causing or encouraging prostitution of defective), in subsection (1), after “woman”, insert “, aged 18 or over,”.
(4) In section 1(1) of the Street Offence Offences Act 1959 (Loitering or soliciting for purposes of prostitution), after “female)”, insert “, aged 18 or over,”.
(5) The Sexual Offences Act 2003 is amended as follows.
(6) In section 48 (Causing or inciting child prostitution or pornography)—
(a) in the title of the section, for “prostitution” substitute “sexual exploitation”; and
(b) in subsection (1)(a), for “become a prostitute” substitute “be sexually exploited”.
(7) In section 49 (Controlling a child prostitute or a child involved in pornography)—
(a) in the title of the section, for “prostitute” substitute “sexually exploited child”; and
(b) in subsection (1)(a), for “prostitution” substitute “sexual exploitation”.
(8) In section 50 (Arranging or facilitating child prostitution or pornography)—
(a) in the title of the section, for “child prostitution or pornography” substitute “the sexual exploitation of a child or child pornography”; and
(b) in subsection (1)(a), for “prostitution” substitute “sexual exploitation”.
(9) In section 51 (Sections 48 to 50: interpretation), in subsection (2), for “prostitute” substitute “sexual exploitation”; for “prostitution” substitute “sexually exploited”.
(10) All reference in other legislation to the above sections and titles should be treated as referring to the amended titles above.’—(Ann Coffey.)
“(1) The Sexual Offences Act 2003 is amended as follows.
(2) In section 9 (Sexual activity with a child), after subsection (3), insert—
“(4) A Court shall presume that a defendant, A, does not believe that B is aged 16 or over if there is evidence to suggest that B is a victim of child sexual exploitation in which A is involved; unless A adduces evidence which raises an issue as to his reasonable belief in whether B was aged 16 or over at the time or immediately before the offence.
(5) Child sexual exploitation is any scheme or offence which is calculated or designed to create a position whereby B can be exploited so that B is or might be the subject of a sexual offence.”
(3) In section 75 (Evidential presumptions about consent), after subsection (2)(f), insert—
“(g) the complainant was a victim of child sexual exploitation: or
(h) the defendant can be shown to have been directly involved in child sexual exploitation.
( ) In this section, “child sexual exploitation” means any scheme of offence as defined by section 9(5).””
“(1) The Director General of the National Crime Agency (NCA) must—
(a) make arrangements for publishing statistical information with regard to allegations of child sexual exploitation and abuse, and
(b) publish information in accordance with those arrangements.
(2) This information must include the number of cases of child sexual exploitation and abuse reported each year to the Agency.”
“( ) In section 5 of the Sexual Offences Act 2003 (Rape of a child under 13), after subsection (2) insert—
(3) For the purposes of this Act, the consent of a child under the age of 13 is irrelevant.
(4) The common law of “ostensible consent” in relation to sexual offences is hereby abolished.
(5) For the purposes of sentencing an offender in connection with offences under this Act in relation to a child, a court shall presume the consent of child to be absent.”
New clause 1 stands in my name and that of my hon. Friend the Member for Rotherham. It seeks to remove all references to child prostitution in legislation, substituting the phrase “child sexual exploitation”. Currently, 16 pieces of legislation use the term “child prostitution”, a phrase that implies choice, consent and a commercial contract. Offences under section 1 of the Street Offences Act 1959 as amended by section 16 of the Policing and Crime Act 2009 can still be committed by a child aged 10 or over.
There is no doubt that in recent years much has been done to take the word “prostitute” in relation to children out of Government guidance, an important move because language shapes attitudes. Six years ago, the sexual exploitation of children was still being referred to as child prostitution in statutory guidance. Fresh guidance in 2009 was entitled “Safeguarding children and young people from sexual exploitation”, whereas previous guidance from 2000 had been entitled “Safeguarding children involved in prostitution”.
Attitudes are changing. Between 1992 and 1996 there were 1,449 cautions—about 300 a year—for prostitution by under 18-year-olds and 976 court proceedings for loitering or soliciting for the purpose of prostitution under the 1959 Act. Between 2010 and 2013, 15 cautions were received by juveniles under the age of 18 and there were proceedings against seven defendants under the age of 18; of those seven, three were found guilty but none was imprisoned. Last year, there were five cautions for prostitution-related offences for those aged 15 to 17; there were proceedings against two, who were found guilty.
It is vital that wider cultural attitudes are tackled and changed if we are to protect children and young people from sexual exploitation. The new clause to remove reference to child prostitution has widespread support. In 2012, the interim report by the Office of the Children’s Commissioner on sexual exploitation in gangs and groups, “I thought I was the only one. The only one in the world”, called for a Government review of all legislation and guidance that made reference to children as prostitutes or as involved in prostitution. In June 2013, the Home Affairs Committee produced a report entitled, “Child sexual exploitation and the response to localised grooming”, which supported all recommendations from the Office of the Children’s Commissioner.
In 2012, I chaired a joint all-party inquiry into children missing from care that called for changes to schedule 5 of the Children’s Homes Regulations 2001. We recommended that the obligation on homes to notify
“To speak of girls and young women’s involvement in prostitution without also stating that they are emotionally, physically or economically coerced is now the same as saying ‘girls and young women’s involvement in their own abuse’. To state that they are involved in prostitution is regarded as a denial that they are being abused.”
In April 2013, Barnardo’s published a report of the parliamentary inquiry into the effectiveness of legislation for tackling child sexual exploitation and trafficking within the UK. That inquiry was ably chaired by my hon. Friend the Member for Rotherham. It recommended the removal of all references to child prostitution in legislation, as did the report I produced last October. Indeed, it has the support of the Minister, the hon. Member for Staffordshire Moorlands, who said at the conclusion of Second Reading:
“I want to be absolutely clear that children who are sexually exploited, whether for commercial or other reasons, should not be referred to as prostitutes. They should be recognised as victims and we will certainly consider references in older legislation and guidance as opportunities arise, as well as considering carefully the wording used in any new legislation or guidance.”—[Official Report, 5 January 2014; Vol. 590, c. 123.]
We need to see some action on this. It was raised in 2012, and the Government accepted the recommendations in the Children’s Commissioner’s report at that time. I hope that the Solicitor-General will give some indication of how and when that action will happen. A lot has been done in this Parliament to raise awareness and start to tackle child sexual exploitation by introducing both new legislative measures and guidance. As he said a few minutes ago, change can be made by this place if there is a will. It would be good if this was the Parliament that abolished the offensive, inappropriate and damaging term “child prostitution” in our legislation.
Sir Andrew Stunell: I want to say first that the hon. Member for Stockport has done a huge amount of work on this and we should all give her credit for that. We are in her debt and the debt of those who work with her for bringing this important issue forward. I do not know precisely how the Solicitor-General will respond, but I hope that he will pick up the theme of what his ministerial colleague the hon. Member for Staffordshire Moorlands said on Second Reading. I also hope that he will give us some assurance that, if not part of the Committee’s proceedings this afternoon, this important issue will at least be part of our consideration on Report so that it can be dealt with as it should. It is quite clear that society and our understanding have moved on. The time has come to get rid of this offensive wording in our legislation and replace it with what we really mean, which is child abuse.
Sarah Champion: I speak to support the new clauses tabled by my hon. Friend the Member for Stockport and to give a voice to some of the young people whom this impacts on. She mentioned the report of the inquiry which I chaired with Barnardo’s and which she sat on. We made a very clear recommendation that the term “child prostitution” should not be used in our legislation any more. Unfortunately, it is still used in 16 pieces of legislation. I met the Minister at the time, the right hon. Member for Lewes, who agreed with that position and said that, as laws come up, we should look to change them. I would like the Solicitor-General to make an actual commitment to start doing that. It is fantastic that we have the warm words, but if we could actually have some action that would be very positive.
One of the things that the young people who spoke to us in our inquiry said was that, because the term is still there, they will still hear it used against them in court or by the police. Adults are allowed to use the term—it is within the law, but the young people said that it made them feel dirty, complicit, and disgusted with themselves. I will briefly read out what I think is a poem by one of the victims from Rotherham, which sums up in her words exactly how the abuse makes them feel. She is a 17 year-old survivor, but was 14 at the time of the abuse. “They call us slags, tarts, whores, up for it, trash, trouble, prozzies. This name-calling was not just from the abusers but labelled upon us by the services that are supposed to protect us. How are those names helping children who are victims of rape? My name is Sally. Others call me daughter, sister, cousin, niece, grandchild. I am a survivor of child rape, so call me by my name, while I call myself a proud survivor.”
Jack Dromey: I did not intend to make a contribution, but having been asked, I will speak very briefly about what we have just heard. A very powerful case has been put. Archaic language is being used that is profoundly insulting. The idea that we demonise victims by calling them prostitutes is entirely wrong and therefore we very much hope that the Government will respond positively.
I turn now to clause 24. There is a great national will to tackle the obscenity of child sexual exploitation and child abuse. Parliament has a duty to rise to that challenge. There is much in the Bill that is welcome; indeed, we have sought to strengthen the Bill further. For example, while we accept that we have got to get mandatory reporting right—and therefore the consultation process will move ahead—it is now clear as a consequence of our debate that it is no longer a question of if but of when we will see the introduction of mandatory reporting.
Crucially, to tackle a problem, we have to know the scale and nature of that problem, the better to inform the action that the Government and agencies take, including in respect of the allocation of resources. The public have a right to know both the scale and nature of the problem and to be reassured that we are rising to the challenge, taking all powers necessary, making available all resources necessary and holding Parliament and the Government to account. Transparency is therefore key. Before 2010, in the document “The Way Forward”, the proposal was for a consolidation of child protection measures and actions under the banner of the Child
We are not proposing necessarily that the solution to the problem of transparency is to become FOI compliant. However, with proposed new clause 24 we are urging the Government to make provisions for the National Crime Agency to publish statistical information about allegations of child sexual exploitation and abuse. The NCA has details of tens of thousands of people who have accessed vile images of child abuse, but only hundreds have been arrested and acted against. We are therefore calling for the NCA to be transparent about the scale of the problem and to publish information on allegations of child sexual exploitation and abuse. Thus far, there has been a distinct reluctance regularly to release such information—for example, on the number of people in the UK who are accessing indecent images of children.
We understand that some NCA areas cannot be subject to information requests, because of their sensitive nature, but it is wrong that the agency should be able to hide behind that exemption on the issue of child sexual exploitation. If the NCA is properly to discharge its function, it must be willing to be open, not only with local authorities, the police and front-line services as to the scale of the problem but with the public. It is simply wrong that such information is not made available by the NCA in the way that it should be and that other arms of government and agencies do so, not least because both Parliament and public want to hold the Government to account for whether they are acting effectively to tackle that great national scandal. In addition, it is simply wrong that the vast majority of those downloading vile child abuse images are not investigated while children remain at risk. The NCA says that it does not have the resources to investigate all cases, but the police arrest more than 220,000 people a year for theft and more than 110,000 a year for drug offences.
In conclusion, our strong view is that the time has come for effective transparency on the part of the NCA to inform precisely the kind of great national debate now taking place, including, in the context of the two inquiries, why we do not have a much more robust approach to going after those evil people—overwhelmingly men—who access such abuse images online. If we are therefore to stay true to what the public want from us, the NCA needs to open up in future. We very much hope that the Minister will respond positively.
Ann Coffey: Thank you, Ms Clark. I will speak to the other new clauses in the group. The aim of new clause 2 is to support the new guidelines issued by the Sentencing Council in April 2014 that the focus should be more on the offender’s actions and behaviour towards the victim than on the victim’s behaviour. The provision would
I see new clause 2 as covering offences against children by multiple men—children passed around for sex—victims of grooming, which is intended to get children to accept sexual activity, and victims of coercion, force, fear and intimidation. The provision would basically move the focus on to the offender to give evidence to substantiate his belief that a child was over 16.
“There is not a word to describe how bad it was. I have never experienced anything like that in my life, and I never want to experience anything like that ever again… One of the barristers was not even asking me questions, he was just shouting at me, and the judge kept having to tell him to stop.”
In recent high-profile cases we were shocked not only by the depths of depravity of the offenders when we heard about the abuse that they inflicted on the children who were their victims but by the aggressive cross-examination by defence lawyers, which was designed to depict the children as willing partners in the jurors’ eyes or suggest that the defendant had reason to believe that the child, because of their behaviour or the way they dressed, was over the age of legal consent. They were depicted not as children in need of protection, or as children at all, but as sexual commodities complicit in their sexual abuse.
There is a widespread problem in wider society of adults not understanding their responsibilities to all children—undeserving children as well as deserving children. When he was Director of Public Prosecutions, Keir Starmer made the point that all children should have the protection of the criminal justice system. He issued new guidance in October 2013 and said:
“The final guidelines, which have been subject to a three month public consultation, confirm that the now accepted approach is that the prosecution must focus on the overall credibility of an allegation rather than the perceived weakness of the person making it.”
New clause 2 would help to do that by focusing on the credibility of the defendant’s belief that a child victim of sexual exploitation was over 16. I do not believe that the criminal justice system can eliminate child sexual abuse. Indeed, in my research for the report I found that, over the past six years, 13,000 reported cases of major sexual offences against children in Greater Manchester resulted in only 1,000 convictions. There are many reasons for that, as shown by “Achieving best evidence in child sexual abuse cases,” which was published by the Criminal Justice Joint Inspection in December 2014. The main reason was the way in which evidence is gathered for the court. We have a very adversarial court system, but progress is being made and there is better support for witnesses. Cross examination is now focusing on the credibility of the allegation. I look forward to meeting the recorder in Liverpool to discuss how the section 28 pilot is proceeding.
Better protection of children will come from a change in attitudes towards children, a better understanding of vulnerability and the exploitation of that vulnerability and a cultural shift that leads to change in the behaviour of adults towards children so that adults, and not the children themselves, are seen as responsible for their relationships with children. The judge’s summing up in the case last week in which a teacher was convicted of sexual activity in a position of trust demonstrates how far the judiciary have to go in understanding exploitative relationships. More focus on the credibility of allegations in the context of sexual offences against children would help to shift the culture of victim-blaming and would underline that it is the responsibility of adults to ensure that they are not exploiting or having sex with children.
Amendment 1 would amend section 5 of the Sexual Offences Act 2003, which introduced separate offence categories for children under the age of 13. The main difference between the under-13 offences and the equivalent offences for those aged 13 and over is that a victim under the age of 13 is deemed to be legally incapable of consenting to sexual behaviour. The under-13 offences were included in the Act following the policy decision to provide increased protection for younger children. However, the 2007 sentencing guidelines state that, notwithstanding that, there will be cases involving victims under 13 years of age where there was in fact consent even though in law it cannot be given—that is known as ostensible consent.
The guidelines continue by stating that in such circumstances presence of consent may be material in relation to sentencing. Since then, there has been a greater understanding of the grooming process. In 2012, the Sentencing Council issued a consultation, which stated:
“The Council feels it is important that, for these under 13 offences, cases where a child has been groomed into acquiescence are taken as seriously by sentencers as cases where there is forced non-consensual sexual activity.”
“Younger children are increasingly at risk of sexual exploitation. The experience of at least a third of our services is that overall, the children we are working with are getting younger…the average age of service users has fallen from 15 to around 13, and some services have started working with children as young as 10.”
In April 2014 the Sentencing Council issued new guidelines that make it clear that victims are not responsible for what has happened to them. That is particularly emphasised in relation to offences committed against children. In the previous guidelines, some child sexual offences were labelled as involving ostensible consent; that is, where a child aged over 13 has apparently agreed to sexual activity. The Sentencing Council believes that that is the wrong way of looking at such offences, because children do not consent to their own abuse. The new guidelines, therefore, look more at the offender’s action and behaviour towards the victim:
“When dealing with the statutory offence of rape of a child under 13, the court may be faced with a wide range of offending behaviour. Sentencers should have particular regard to the fact that these offences are not only committed through force or fear of force but may include exploitative behaviour towards a child which should be considered to indicate high culpability.”
New clause 2 is designed to ensure that the Bill reflects our increased understanding of predatory behaviour that is intended to groom a child into sexual acts, to
The Solicitor-General: I am happy to respond to hon. Members at the end of another stimulating debate. I am grateful to the hon. Member for Stockport, who has helpfully brought us fully up to date the position with regard to young victims. She has set out current thinking in the courts about what I will call the myth of consent, and about the fact that we are dealing with people who are clearly in a position of inequality of bargaining power. There is no equivalence between the mind of a 13-year-old and the mind of a 40-year-old. That has been a problem that we have sometimes struggled to deal with.
It would be wrong of me to comment about a case that has just occurred—in fact, the case I am talking about has been concluded and is not now within the unduly lenient sentence scheme. I can think of other examples in which what has been referred to as ostensible consent could actually be an aggravating factor, because it was accompanied by a background of grooming, planning and cultivation to create the myth of consent.
I am grateful to the hon. Lady for setting out the position. She is quite right to say that the guidelines of 2007 have been superseded entirely. The new guidelines contain no reference to ostensible consent; indeed, there is no reference to that phrase in the criminal law. I reassure her that that principle, if it ever existed, is not one that belongs in the statute book or in common law. Neither is it part of any of the guidelines that are applied to sentencing in sexual offences. I will come back to that briefly when I talk about the relevant amendments and new clauses.
We all agree that child sexual exploitation is abhorrent, and we are all determined to tackle it in whatever form it takes. The Bill contains some excellent provisions, some of which we have debated, to help us to achieve that. Grooming and child sexual exploitation happen in all areas of the country, and they take many different forms. They are never acceptable, and we must all work together to ensure that those sickening crimes no longer remain hidden and that offenders are brought to justice.
The important points made by hon. Members today are an eloquent testament to the way in which some of the most vulnerable people in our society are viewed after suffering appalling abuse. Those points reflect the findings of a number of recent reports, such as following the Office of the Children’s Commissioner’s inquiry into child sexual exploitation in groups and gangs, the hon. Member for Rotherham’s cross-party inquiry into the effectiveness of child sexual exploitation legislation and, indeed, the report, “Real Voices”, on child sexual exploitation in Greater Manchester, which was authored by the hon. Member for Stockport.
The Government are clear that children who are sexually exploited, whether for financial gain or other reasons, should not be referred to as “prostitutes”; rather, they should be recognised as victims. That is why the Government have acted to update guidance. For example, the Department of Health’s “Safeguarding Children Involved in Prostitution” guidance from 2000 was replaced in 2009 by the “Safeguarding Children and
Therefore, we support the principle behind new clause 1. We have been clear, in response to the reports that I mentioned, that we will consider amending such references in existing legislation and guidance as opportunities arise, as well as considering carefully the wording used in any new legislation or guidance. I can see why the hon. Member for Stockport has taken the opportunity to table new clauses.
On new clause 1, I point out that sections 28 and 29 of the Sexual Offences Act 1956 were repealed by the Sexual Offences Act 2003. Technically, we do not need to make those changes because the sections are no longer on the statute book. However, it is important to recognise that those changes would go further than simply changing the nomenclature used in various statutes. A number of the proposed provisions would have the effect of changing the scope of various criminal offences. As such, they require rather more careful examination.
Subsection (4) of new clause 1 seeks to amend section 1 of the Street Offences Act 1959, so that the offence of loitering or soliciting for the purposes of prostitution would apply only to adults. The Government recognise how the provision fits with the spirit of the hon. Member for Stockport’s proposals. It could, however, have a material impact in terms of the criminality and enforcement tools available to the police, and may risk unforeseen consequences. We certainly do not have a closed mind to it but it is only right that we consider carefully the impact of that change with police and others before coming to a final view.
Norman Baker: My hon. and learned Friend has reiterated a point that I made in office, and that others have made: the term “prostitution” should not be used in this context. Although I am happy to accept his analysis that new clause 1 is faulty, I am sure that Opposition Members would be happy to accept that if we could have an undertaking that the point will be dealt with. Will he undertake to come back with a Government amendment on Report to deal with this better than the way it has been set out?
The Solicitor-General: We are going to give further careful consideration to both new clauses as a matter of urgency. I am not yet in a position to offer an assurance that the Government will table their own amendments on Report, but I can undertake to set out our conclusions in good time so that if the hon. Member for Stockport is not satisfied with those conclusions, she and others have the opportunity to re-table their own amendments, or a variation of them, on Report. We are getting to a position where things are progressing.
New clause 2 is about consent and producing evidence to show a reasonable belief that the child was aged 16 or over at the time of, or immediately before, the alleged offence. That is an evidential burden, and if it is raised the prosecution has to prove that the defendant did not reasonably hold such a belief.
I was interested to hear some of the examples that the hon. Member for Stockport provided. Of course, in many cases, the prosecution will not have to bring
Subsection (3) of new clause 2 seeks to add the fact that the child was a victim of child sexual exploitation, or the fact that the defendant can be shown to have been directly involved in such exploitation, to the list of circumstances that give rise to the consent presumptions in section 75 of the 2003 Act, which applies to offences of rape, assault by penetration, sexual assault, and causing a person to engage in sexual activity without consent.
In a nutshell, the section provides that if it is proved that the defendant did the relevant act, and it is also proved that any of the circumstances listed in that section existed and that the defendant knew they existed, the victim will be taken not to have consented to the relevant act, and the defendant will not be taken to have reasonably believed the victim consented, unless sufficient evidence is adduced to raise an issue as to whether the victim consented.
At the moment—rightly so—proof of such offences involving children under 16 does not require proof of the absence of consent on the part of the victim. Consent is irrelevant. Where rape or other consent-based offences are charged, the prosecution can benefit from the existing presumptions. They bear directly on the victim’s ability to give free consent at the time of the act in question. So my immediate thought is that it might not be appropriate to refer in that list to the more general circumstances surrounding the offence. Again, however, I undertake to consider the matter further.
The amendment tabled by the hon. Member for Stockport to section 5 of the 2003 Act seeks to clarify that the consent of a child under 13 is irrelevant in proceedings under the section that deals with the rape of a child under 13. As I have said, consent is not relevant in such a case. That is why the offence can be committed whether the child consented or not, so I do not believe we need to clarify something that is already part of our law.
The hon. Member for Birmingham, Erdington argued in favour of new clause 24. I agree that transparency and robust accountability is crucial to the effective working of our law enforcement agencies. That is one of the reasons why the National Crime Agency was established, with a direct line of accountability between the director general to the Home Secretary and, through her, to Parliament. There are already robust arrangements in place for the publication of information on allegations of child sexual abuse, without the need for the imposition of an additional duty, however well intentioned.
Section 6 of the Crime and Courts Act 2013 already provides that the director general of the NCA must make arrangements for publishing information about the exercise of its functions and other matters relating to the agency, and must publish information in accordance with those arrangements. Annex A of the framework
The director general may edit, redact or decline to publish any information, the publication of which he reasonably considers would prejudice or jeopardise, or would be likely to prejudice or jeopardise: the discharge of the NCA’s functions as set out in the Act; national security; the health and safety of any person; the commercial interests of the NCA or any person; or evidence that might jeopardise diplomatic or international relations with foreign governments. These transparency arrangements are set out in a document entitled “Transparency: The NCA Publication Approach”, which was published in September 2014.
The arrangements for publishing information are clear. The National Crime Agency already publishes the information that the duty introduced by this new clause would demand. The published “National Crime Agency Annual Report and Accounts 2013/14” includes data on the number of referrals received by the child exploitation and online protection command alongside the number of intelligence packages disseminated and the numbers of children protected or safeguarded. Local police forces also hold information on allegations of child sexual exploitation and abuse. Imposing a duty on the NCA along the lines proposed in the new clause would only give a partial view of the extent of enforcement activity.
I hope I can assure the hon. Member for Birmingham, Erdington that his points, though well made, are already covered by fairly recent legislation and guidance, which encourage robustness and transparency while protecting certain information for operational requirements. I thank all Members for their speeches and the amendments and new clauses they have submitted. I commend the Government’s new clause to the House and urge Members to withdraw their amendment and new clauses.
Ann Coffey: I entirely accept the Minister’s comments on amendment 1, which I am happy to withdraw. I took his response on new clause 2 to be positive, and I am pleased that he will give further consideration to the issue that it attempted to raise. On new clause 1, I believe that there is a lot of support for changing the wording in legislation. I understand that there might be unintended consequences, but I gently say that it was first proposed in 2012, so there has been a long time to look at unintended consequences.
I am anxious that we resolve the matter in this Parliament, because it would be a fitting end to a Parliament in which there has been a lot of cross-party support in raising awareness of child sexual exploitation. I am happy to wait to hear the Minister’s comments, but
‘(1) Internet service providers which provide internet storage facilities to their users such as, but not limited to, cloud content storage, must seek to ensure their service is not used to store, transmit or display indecent images of children, contrary to section 1 of the Protection of Children Act 1978 (indecent photographs of children).
(2) Where it is evident to an internet service provider that their services or network is being misused as set out in subsection (1), they must take all reasonable steps to mitigate, reduce, eliminate or otherwise disrupt such misuse and restrict access to such images.
(3) In this section, “internet service provider” has the same meaning as in section 124N of the Communication Act 2003 (interpretation).’.—(Jack Dromey.)
‘In the Child Abduction Act 1984, in section 2(1) (offence of abduction of child by other person), for “sixteen” substitute “eighteen”.’—(Mr Llwyd.)
‘In the Child Abduction Act 1984, after section 2 (offence of abduction of child by other person) insert—
“2A Power to issue a child abduction warning notice
(1) A member of a police force not below the rank of superintendent (“the authorising officer”) may issue a child abduction warning notice (“a CAWN”) under this section.
(2) A CAWN may be issued to a person (“A”) aged 18 years or over if the authorising officer has reasonable grounds for believing that—
(a) A has without lawful authority or reasonable excuse been found in the company of a child (“C”); and
(b) C is reported missing and is found on two or more occasions to be in the company of A; or
(c) there is reason to suspect that C’s behaviour is, by reason of association with the defendant, giving significant cause for concern.
(3) Before issuing a CAWN, the authorising officer must, in particular, consider—
(a) any representations made by the person with lawful authority for C; and
(b) any representations made by A as to the issuing of the CAWN.
(4) The authorising officer must take reasonable steps to discover the opinions mentioned in subsection (3).
(5) A CAWN must prohibit A from being in the company of C.
2B Contents and service of a child abduction warning notice
‘(1) A CAWN must state—
(a) the grounds on which it has been issued;
(b) that a constable may arrest A without warrant if the constable has reasonable grounds for believing that A is in breach of the CAWN;
(c) that an application for a child abduction warning order under section 2D will be heard within 48 hours of the time of service of the CAWN and a notice of the hearing will be given to A;
(d) that the CAWN continues in effect until that application has been determined; and
(e) the provision that a magistrates’ court may include in a child abduction warning order.
(2) A CAWN must be in writing and must be served on A personally by a constable.
(3) On serving A with a CAWN, the constable must ask A for an address for the purposes of being given the notice of the hearing of the application for the child abduction warning order.
2C Breach of a child abduction warning notice
‘(1) A person arrested by virtue of section 2B(1)(b) for a breach of a CAWN must be held in custody and brought before the magistrates’ court which will hear the application for the CAWO under section 2D—
(a) before the end of the period of 24 hours beginning with the time of the arrest; or
(b) if earlier, at the hearing of that application.
(2) If the person is brought before the court by virtue of subsection (1)(a), the court may remand the person.
(3) If the court adjourns the hearing of the application by virtue of subsection 2D(8), the court may remand the person.
(4) In calculating when the period of 24 hours mentioned in subsection (1)(a) ends, Christmas Day, Good Friday, any Sunday and any day which is a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971 are to be disregarded.
2D Application for a child abduction warning order
‘(1) If a CAWN has been issued, a constable must apply for a child abduction warning order (“a CAWO”).
(2) The application must be made by complaint to a magistrates’ court.
(3) The application must be heard by the magistrates’ court no later than 48 hours after the CAWN was served pursuant to section 2B(2).
(4) In calculating when the period of 48 hours mentioned in subsection (3) ends, Christmas Day, Good Friday, any Sunday and any day which is a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971 are to be disregarded.
(5) A notice of the hearing of the application must be given to A.
(6) The notice is deemed given if it has been left at the address given by A under section 2B(3).
(7) But if the notice has not been given because no address was given by A under section 2B(3), the court may hear the application for the CAWO if the court is satisfied that the constable applying for the CAWO has made reasonable efforts to give A the notice.
(8) The magistrates’ court may adjourn the hearing of the application.
(9) If the court adjourns the hearing, the CAWN continues in effect until the application has been determined.
(10) On the hearing of an application of a CAWO, section 97 of the Magistrates’ Court Act 1980 (summons to witness and warrant for his arrest) does not apply in relation to a person for whose protection the CAWO would be made, except where the person has given oral or written evidence at the hearing.
2E Conditions for and contents of a child abduction warning order
‘(1) The court may make a CAWO if two conditions are met.
(2) The first condition is that the court is satisfied on the balance of probabilities that the conditions set out in section 3(2) are satisfied.
(3) The second condition is that the court thinks that making the CAWO is necessary to protect C from harm as a result of association with A.
(4) A CAWO must state that a constable may arrest A without warrant if the constable has reasonable grounds for believing A is in breach of the CAWO.
(5) A CAWO may be in force for—
(a) no fewer than 14 days beginning with the day on which it is made; and
(b) until the date of the 16th birthday of C.
(6) A CAWO must state the period for which it is to be in force.
2F Breach of a child abduction warning order
‘(1) A person arrested by virtue of section 2E(4) for a breach of a CAWO must be held in custody and brought before a magistrates’ court within the period of 24 hours beginning with the time of the arrest.
(2) If the matter is not disposed of when the person is brought before the court, the court may remand the person.
(3) In calculating when the period of 24 hours mentioned in subsection (1) ends, Christmas Day, Good Friday, any Sunday and any day which is a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971 are to be disregarded.
2G Further provision about remand
‘(1) This section applies for the purposes of the remand of a person by a magistrates’ court under section 2C(2) or (3) or 2F(2).
(2) In the application of section 128(6) of the Magistrates’ Court Act 1980 for those purposes, the reference to the “other party” is to be read—
(a) in the case of a remand prior to the hearing of an application for a CAWO, as a reference to the authorising officer; and
(b) in any other case, as a reference to the constable who applied for the CAWO.
(3) If the court has reason to suspect that a medical report will be required, the power to remand a person may be exercised for the purpose of enabling a medical examination to take place and a report to be made.
(4) If the person is remanded in custody for that purpose, the adjournment may not be for more than three weeks at a time.
(5) If the person is remanded on bail for that purpose, the adjournment may not be for more than four weeks at a time.
(6) If the court has reason to suspect that the person is suffering from a mental disorder within the meaning of the Mental Health Act 1983, the court has the same power to make an order under section 35 of that Act (remand to hospital for medical report) as it has under that section in the case of an accused person (within the meaning of that section).
(7) The court may, when remanding the person on bail, require the person to comply before release on bail or later, with such requirements as appear to the court to be necessary to secure that the person does not interfere with witnesses or otherwise obstruct the course of justice.
‘(1) The Secretary of State may issue guidance relating to the exercise by a constable of functions under sections 2A to 2F.
(2) A constable must have regard to any guidance issued under subsection (1) when exercising a function to which the guidance relates.
(3) Before issuing guidance under this section, the Secretary of State must consult—
(a) the Association of Chief Police Officers;
(b) the National Crime Agency; and
(c) such other persons as the Secretary of State thinks fit.”’
This amendment establishes child abduction warning notices (CAWNs) on a statutory basis, addressing concerns raised in the House of Lords on the issue, by introducing a two-stage process providing judicial oversight, without compromising the ability of the police to issue a CAWN without delay. The proposed process is similar to that in place for Domestic Violence Prevention Notices/Domestic Violence Prevention Orders (DVPN/DVPO).
‘In the Child Abduction Act 1984, insert—
“(2A) References to the age of “sixteen” in section 2 are to be interpreted as references to the age of “eighteen” for the purposes of any proceedings relating to abductions within England and Wales.”’
Mr Llwyd: I tabled new clause 16 in conjunction with amendment 40, which we debated last week. Amendment 40 would have raised the age in the definition of a child to those under 18 years of age. The latter amendment was tabled to tackle the fact that at present, 16 and 17-year-olds are not afforded the same legal protection when they suffer cruelty at the hands of an adult. New clause 16 was tabled in the same spirit: that 16 and 17-year-olds should also be protected by legislation covering child abduction, and that police should be able to issue child abduction warning notices for their protection, in the same way that they can for their younger counterparts.
Members will no doubt be aware that child abduction warning notices are tools that the police can use to intervene in cases where they are concerned about an inappropriate relationship between a child and an adult. The police can use such notices to prevent an adult from approaching or abducting a child whom they believe is at risk. The notices can be used in court to support evidence of potential child sexual exploitation, among other crimes. At present, however, police can issue child abduction warning notices only for children under age 16. My new clause would raise that age to 18.
In 2013, Parents and Abducted Children Together and the Child Exploitation and Online Protection Centre published a joint report entitled “Taken”, which considered the problem of child abduction in the UK. The report pointed out:
The report also criticised the lack of a uniform definition of child abduction, resulting in an inability to distinguish serious crimes such as murder or rape which involve abduction from those that do not. It bemoans the fact that no single source of data on child abduction in the UK currently operates, as different types of abduction come under different umbrellas. That is further complicated by the fact that only those under 16 are captured in police data relating to child abduction cases.
The report recommends that a national child abduction hub should be set up to develop policy, and that one of its first functions should be to agree a UK-wide definition of child abduction. Another key recommendation is that an evaluation should be conducted into the effectiveness of child abduction warning notices.
Interestingly, a few minutes ago, the Solicitor-General prayed in aid the recent report by the Children’s Commissioner for England regarding the context of the last debate. It might please the Committee to hear that in that report, the Children’s Commissioner asked the Government to consider
“whether there should be an extension to the age limit from 16 years to 18 years within the provisions of the Child Abduction Act 1984 regarding the abduction warnings process and that these should be issued with or without parental consent, if deemed necessary.”
In April 2014, Barnardo’s published a report following a parliamentary inquiry into child sexual exploitation and trafficking, which recommended that child abduction warning notices should be strengthened and that the notices should be placed on a statutory footing, thus creating an offence of breaching the conditions of a notice.
Each of those organisations is evidently concerned about the relative ineffectiveness of child abduction warning notices in deterring perpetrators from abducting children. It stands to reason that if the notices are to be reviewed, the Government should consider extending their application to all children under 18. I should also point out that both Greater Manchester and Cheshire police have argued that they would find it useful to be able to issue notices to protect 16 and 17-year-olds, as well as younger children. It is true that in some cases involving sexual abuse, police will be able to use sexual risk orders and sexual harm prevention orders, but those will not be applicable in cases that do not centre on sexual abuse.
Another of the recommendations that came out of the inquiry that I did with Barnardo’s was the disparity between a child living at home, for whom child abduction warning notices finish at 16, and children in care, for whom they finish at 18. I accept that children in care are disproportionately likely to be victims of child sexual exploitation, but the Committee must recognise that the vast majority of children are still living at home.
I am not sure whether other Members have had similar experiences, but a mother came into my surgery at her wit’s end. She knew that her 17-year-old was hanging around with the wrong people, who she suspected were grooming her, and would not stay at home. The police and social services could not intervene because the girl was 17. The mother was literally trying to lock the girl in her bedroom, but she was breaking out and climbing out of the window. Such an example is, unfortunately, very common. A lot of us might have thought that that girl was an unruly teenager, but in this day and age I hope that we would now think, “Maybe something more significant is going on.” At the moment, the situation is one that child abduction warning notices do not cover. Personally, I think it is unacceptable for young people to get different protections dependent on whether they are living with their parents or are a ward of the state. The law should be consistent and have a consistent position regardless of the legal status of the child.
New clause 21 is also to do with abduction warning notices. I have spoken in the Chamber on this subject and I know that it was raised in the other place, but I will briefly go through the main arguments again. Basically, new clause 21 would make an important change to help in the fight against child sexual exploitation. Child abduction warning notices are a useful tool for the police and are used mainly for gathering evidence and for building a case around someone who intends to go on to groom and abuse a child. If we could put the notices on a statutory basis, however, breaching them would be an offence in its own right. As a result, well before the grooming and the abuse happened, the police could do something to protect the child.
At the moment, the police are extremely limited in what action they may take if a child abduction warning notice is ignored. The cross-party parliamentary inquiry that I chaired—many members of the Committee, including my hon. Friend the Member for Stockport, participated—was told time and again by police that placing the notices on a statutory basis would better help them to protect children from exploitation. The existing situation can put vulnerable children at risk, as police need the more serious offence of abduction to be committed before they may intervene. The police have described how perpetrators have ignored the conditions in a notice, but they have been powerless to act because the high requirement of the abduction offence has not been met. The inability to act also damages people’s faith in the police and their protection, with potentially serious implications for whether young people or their parents will seek help from the criminal justice system in future.
My parliamentary inquiry recommended that child abduction warning notices therefore be made statutory, so that if someone breaches a condition in the notice there will be clear consequences and the police may take swift action. An additional advantage of such an approach would be much less reliance on the victim
I am grateful to my hon. Friends for their support for new clause 21 and to the Minister who, on Second Reading, committed to work with me on this and give the proposal a thorough consideration. That followed earlier commitments from the Government in the House of Lords to consider what Barnardo’s and I are proposing. In the other place, there were concerns that statutory warning notices would not have sufficient judicial oversight and would give the police unchecked power to effectively issue restraining orders without applying to the courts. There were also subsequent concerns that introducing such judicial oversight would complicate and slow down a process which is currently strengthened by its simplicity and speed.
New clause 21 addresses those concerns, following further consultation by Barnardo’s with the police. It draws heavily on existing legislation—the Crime and Security Act 2010—which created domestic violence prevention notices and domestic violence prevention orders. It is therefore based on an established process and legislative provision. The new clause would mean that courts could oversee the use of statutory child abduction warning notices, while the police would still be able to issue a notice without delay. Crucially, it would finally give child abduction warning notices the strength they need to disrupt the grooming cycle before a child becomes the victim of a more serious offence.
Prevention of sexual exploitation and its devastating impact on children must be a priority and we must give the police the tools they need. I therefore ask the Solicitor-General and the Committee to look favourably on the new clause.
The Solicitor-General: May I deal first with the new clauses tabled by the right hon. Member for Dwyfor Meirionnydd and the hon. Member for Rotherham? New clauses 16 and 22 seek to raise the age threshold for the child abduction offence in section 2 of the Child Abduction Act 1984 from 16 to 18 years. That would bring it into line with the summary offence in section 49 of the Children Act 1989 of abducting a child in care. Both new clauses try to create consistency by removing references to 16 years and replacing them with 18 years.
The section 2 child abduction offence is based on taking or detaining a child without the consent of a parent or person who has parental responsibility. The consent of the person taken or detained is therefore not relevant. In cases where a person is taken or detained without their consent, an offence of kidnapping or false imprisonment might have been committed, irrespective of the victim’s age. It is important to remember that in the context of this offence.
Children in care are particularly vulnerable. That is why the Children Act 1989 makes it an offence to take any child who is in care, including a 16 or 17-year-old, away from the person responsible for them without “lawful authority” or “reasonable excuse”. We come back again to the necessary inconsistency when bearing in mind the context in which a child or young person finds themselves.
While I recognise the arguments made by the right hon. Member for Dwyfor Meirionnydd for consistency between the two offences, the new clauses raise contrary arguments and difficult issues. It is right that I remind the Committee of what we spoke about when debating amendment 40. Many young people aged 16 and 17 can and do live independently of their parents. In many respects, they are able to make their own decisions about how they live their lives, including in relation to sexual relationships.
In recognition of those complex circumstances, the offence in section 2 of the 1984 Act applies only where the child is under 16. The 1980 Hague convention on the civil aspects of international child abduction ceases to operate when the child reaches the age of 16. The criminal law is therefore compliant and consistent with that important international criterion.
New clauses 16 and 22 would have significant wider implications. The Government’s concern is that we might not get the correct balance between additional protection and recognition of relevant rights and responsibilities. For those reasons and with respect, I am not persuaded of the case for this particular change.
In new clause 21, the hon. Member for Rotherham puts forward a strong case for child abduction warning notices to be placed on a statutory footing. I recognise the value of such notices in protecting children who are at risk of abuse. The key question to ask is whether the police have the necessary powers to place restrictions and prohibitions on people who pose a risk to vulnerable children. The Government are determined to do all we can to protect the public from sexual offenders.
The hon. Lady is absolutely right to refer to the comments made on Second Reading, because we have looked at the matter since then, as the result of what she said, very closely indeed. We looked, in particular, at what is already there. We can see that the sorts of powers that she wants are already on the statute book and I have some important news about their implementation, which I hope will give her a lot of reassurance. In particular, we are very soon, before the end of the Parliament, going to be implementing the new sexual risk orders that were introduced by the Anti-social Behaviour, Crime and Policing Act 2014. It is a different means, but it will achieve the very same ends that she has recommended.
The police are going to be able to apply to the courts for these orders where an individual poses a risk of sexual harm, either here in the UK or abroad, even if they have never been convicted of a criminal offence. Were we to put child abduction warning notices on a statutory footing, we would run a very real risk of duplicating sexual risk orders. The context here—the prism through which we are looking at child abduction—is the sexual motive, which is the one that I know concerns the hon. Lady and all of us. Although the nomenclature of these orders is clearly different, we are satisfied that they will deliver the very policy outcome that the hon. Lady seeks.
It may help the Committee if I say a little more about how sexual risk orders will operate. A sexual risk order may be made by the magistrates court for a minimum period of two years, on application by the police or the National Crime Agency. The test for making an order is that the court must be satisfied that the individual has committed an act of a sexual nature as a result of which
Sarah Champion: Will the Minister repeat that? I think he said it would apply when the perpetrator had committed an act, whereas the abduction warning notice is when it is believed that someone has the intention of carrying out an act. It is a slightly different emphasis.
The Solicitor-General: That is a very proper point to make and I will address it immediately. I will give an example that I hope will give the hon. Lady some reassurance. If there was evidence that the taking of preliminary steps of a grooming nature was intended as a precursor to a sexual act, those preliminary steps could constitute an “act of a sexual nature” for the purpose of the legislation. The act of meeting a child could, of itself, be an “act of a sexual nature” when judged in its full context on the facts of an individual case—for example, if there was evidence of grooming-type communication on the internet immediately before or after the meeting, in light of an individual’s behaviour at the meeting and the nature of what took place at the meeting, and the nature of an individual’s intention when meeting the child.
This is not about fully completed sexual acts, it is about the sort of gateway, preliminary or preparatory conduct that I know the hon. Lady has campaigned so assiduously on. It is just the sort of conduct where a child abduction warning notice might be used. We believe that these orders will cover those scenarios. The Sexual Offences Act 2003, as amended, also makes provision for interim sexual risk orders, which can be made when the court considers it necessary to protect the public during any period between the making of an application for a full order and its determination. Any interim order may last for a specified fixed period and may contain any prohibition which the court considers necessary for protecting the public in the United Kingdom, or children or vulnerable adults abroad, from sexual harm.
The purpose of interim orders is to ensure that the police are able to use their knowledge and discretion to identify and manage risks immediately. This gives the public full protection even prior to the final determination of the issue. The introduction of sexual risk orders complements the effectiveness of the current system of child abduction warning notices, which provide for a simple and non-bureaucratic process. The combination of the non-statutory warning notices and the statutory sexual risk orders and interim orders will produce the optimum result. The police can, as now, continue to issue a child abduction warning notice quickly and then move to apply for an interim sexual risk order or a full sexual risk order if the particular circumstances demand. In other words, we are offering a thorough degree of protection that strikes the right balance in securing protection while providing robust safeguards for those who may be subject to an order. Statutory guidance accompanying the implementation of sexual risk orders will also follow, on the time scale I have indicated.
I appreciate that the hon. Lady might want to reflect on what I have said so as to understand further how sexual risk orders can address the gap in the law that she highlighted. I am happy to meet her to go through the issue in more detail before Report. For now I hope that she, the right hon. Member for Dwyfor Meirionnydd and other hon. Members will be content not to press their measures.
Seema Malhotra: I will spare the Committee the short speech I had prepared—and it was short—and will simply make the point that I have heard what the Minister has said and we will look at the matter more closely. In suggesting raising the threshold to 18 to equalise protection from abduction for children in care and not in care our key concern was that the test should be vulnerability. We will look closely at his remarks and decide whether to come back with a further measure at a later stage.
Mr Llwyd: With the Committee’s permission, I seek to withdraw new clause 16. I need to think a bit more about what has been said, as the detail flew over my head. It must be getting late—well, it is only half-past 5, but it feels a bit later. I will think further about the issue and beg to ask leave to withdraw the motion.
“(1) The Female Genital Mutilation Act 2003 is amended as follows:
(2) After section 2 (offence of assisting a girl to mutilate her own genitalia) insert—
“(2A) Offence of encouragement of female genital mutilation—
(a) a person is guilty of an offence of encouragement of female genital mutilation if he makes a statement that is likely to be understood by some or all of the members of the public to whom it is published as a direct or indirect encouragement or other inducement to them to mutilate the genitalia of a girl;
(b) a person commits an offence if—
(i) he publishes a statement to which this section applies or causes another to publish such a statement; and
(ii) at the time he publishes it or causes it to be published, he—
(a) intends members of the public to be directly or indirectly encouraged or otherwise induced by the statement to mutilate the genitalia of a girl; or
(b) is reckless as to whether members of the public will be directly or indirectly encouraged or otherwise induced by the statement to mutilate the genitalia of a girl.””.—(Seema Malhotra.)